UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


ADAMS' 

ILLUSTRATIVE   CASES 

ON 

THE  LAW  OF  SALES 


Selected  by  Professors  of  Leading  Law 
Schools 


St.  Paul,  Minn. 
WEST  PUBLISHING  CO. 

1893 


COPYRIOHT.  1893, 

WEST  PUBr-ISHING  COMPA>fY. 


PREFACE. 


Adams'  Illustrative  Cases  on  Sales  is  one  of  a  series  of  "Selected  Cases" 
issued  by  the  publishers  for  the  use,  more  especially,  of  law  students.  The  name 
"Adams,"  given  to  this  volume,  is  not  the  name  of  editor  or  compiler;  but  since 
every  book,  like  every  person,  must  have  a  name  for  identification,  this  title  has 
been  arbitrarily  chosen  for  that  purpose,  and  for  advantages  in  cataloguing.  The 
cases  are  not  the  selection  of  one  person,  but  of  leading  law-school  professors.  They 
are  published  without  headnotes,  but  a  table  of  contents  by  subject  and  an  index 
are  given.  The  cases  named  by  ditfereut  instructors  as  most  desirable  for  illus- 
trating any  one  branch  of  the  law  naturally  differ,  and,  in  order  that  this  collection 
may  be  most  useful  to  different  classes,  it  has  been  made  very  comprehensive.  As  , 
a  natural  consequence,  it  will  be  found  to  contain  more  cases  than  will  probably  be 
required  by  any  one  school.  But  the  cases  not  used  by  one  school  may  be  the  very 
ones  most  wanted  in  another,  and  it  is  hoped  that  many  teachers  will  thus  find 
among  the  cases  here  given  all  that  they  would  have  selected.  The  matter  has  been 
so  arranged  typographically  that  each  case  begins  at  the  top  of  a  new  page,  and  is 
fronted  by  a  blank  page  or  two,  to  be  used  for  annotations  in  the  class  room.  This 
makes  a  note  book  in  conjunction  with  a  volume  of  selected  cases,  and  it  is  be- 
lieved  that  this  feature  will  be  found  peculiarly  valuable  by  the  careful  student. 
St.  Paul,  Minnesota. 

(iii)* 


72H<iz:> 


TABLE  OF  CONTENTS. 


[the  numbers  refer  to  page.--.] 


THE  CONTRACT, 
I.  In  General, 

o.  What  is  a  sale,  173,  187,  391,  395,  501,  509,  533,  535,  553,  739. 
6.   Who  may  make,  125,  159,  593,  677. 

c.  Mutual  assent,  185,  217,  2r,5,  263,  333,  391,  403,  445,  673,  731, 

733. 

d.  The  price,  3,  503,  531,  539. 

e.  Time  and  place  of  performance,  133,  147,  355,  487. 

II.  Under  the  Statute  of  Frauds, 

a.  What  are  goods,  wares  and  merchandise,  23,  187,  337,  443,  641, 

879. 
h.  Goods  of  the  value  of  fifty  dollars,  3,  879. 

c.  Acceptance  and  receipt,  3,  19,  59,  63,  87,  135,  313,  349,  387,  491, 

609,  737,  807,  837. 

d.  Earnest  or  part  payment,  441,  467,  879. 

c.  The  memorandum,  65,  125,  126,  159,165,267,469,509,549,601, 
685,  817,  893. 

III.  Wlien  Title  Passes, 

1.  What  CoNsxiTrTEs  Transfer,  15,  25,    151,   175,   203,  309,  323,  445, 

473,  527,  531,  541,  631,  657. 

2.  Delivery, 

a.   Necessity  of,  47,  73,  91,  197,  359. 

6.   What  constitutes,  7,  47,  59,  63,  99,  181,  225,  233,  313,  317,  341, 
349,  411,  419,  513,  573,  581,  781,  789,  799,  809,  813,  849. 

c.  Sufficiency  of,  77,  207,  407,  419,  453,  563,  587,  595,  867. 

d.  By  agent,  669,  777. 

e.  To  carrier  or  agent,  3,  43,  77,  387,  423,  463,  635,  669,  697,  767, 

771. 
{.  Weighing  and  measuring,  m,  303,  42i,  527,  587,  689,  697,205^ 

845,  825,  901.  

g.  Effect  onHfen,  7,  367,  523. 

IV.  Inspection  and  Acceptance, 

a.  Right  to  inspect,  245,  271,  (S'.U. 

b.  What  constitutes  acceptance,  3,  19,  61,  105.  135,  221,  233,  403,  427, 

567,  675. 

c.  Necessity  of  acceptance,  3,  403,  419,  567. 

d.  Refusal  to  accept,  25,  47,  87,  161,  387,  487,  557,  691,  727,  837. 

LAW  SALES.  (V) 


vi  TABLE  OF  CONTENTS. 

[The  numbers  refer  to  pases.] 

AVOIDANCE  OF  CONTRACT, 

I.  By  Seller, 

a.  For  fiaud,  27,  29,  33,  211,  233,  237,  249,  275,  299,391,631,6(15. 

743. 
6.  For  insolvency  of  buyer,  51,  449,  519,  767,  789,  793,  803. 

c.  For  failure  to  pay  price,  293,  539,  619. 

d.  For  n)istake,  4:)3,  445,  673,  733,  915. 

II.  By  Buyer, 

o.  For  fraud,  515,  561. 

b.  For  failure  to  deliver,  595,  841. 

c.  Fur  mistake  and  defective  quality,  1S5,  623,  839. 

WARRANTY, 

I.  Express  Warranty, 

<i.   What  constitutes,  83,  141,  371. 

/).   As  to  quality  of  goods,  251,  333,  371,  849,  883. 

II.  Implied  Warranty, 

a.  Of  title,  283,  359,  605,  623,  701. 

b.  Of  fitness  and  quality,  77,  83,  111,  289,  345,  389,  483,  550,  651, 

700,  709.  745,  911. 

c.  Breach,  307,  785. 

REMEDIES, 

I.  Of  Seller  against  Buyer, 

a.  Action  for  price,  25,  47,  121,  327,  349,  437,  487,  557,  587,  709, 

727,  809,  813,  837,  867. 

b.  Action  for  damages,  25,  47,  87,  327,  391,  437,  561,  691,  837,  903. 

II.  Of  Seller  against  Goods, 

o.   Resale,  27,  73,  271,  539. 

6.  Lien,  7,  143,  221,  367,  523,  539,  613,  675,  827. 

c.  Stoppage  in  transitu,  11,  43,  51,  411,  449,481,497,577,579,665, 

767,  789,  793,  825. 

m.  Of  Seller  against  Third  Persons, 

a.  Trover  and  conversion,  289,  391,  453,  481,  617,  759,  763,  777,  799. 

b.  Recovery  of  goods,  249,  407,  637. 

rV.  Of  Buyer  before  Obtaining  Possession  of  Goods, 

a.  Action  for  damages,  323,  403,  oO:;,  879. 

b.  Replevin  of  goods  bought,  705. 

V.  Of  Buyer  when  Title  to  Goods  has  Passed, 

a.  For  breach  of  warranty,  37,  199,  251,  289,  293,  307,  363,  651,  785, 

849,  883. 
6.  Action  for  damages,  283,  287,  323,  353,  403,  503,  605,  841. 


TABLE  OF  CONTEXTS.  vii 

[The  numbers  refer  to  pages.] 

BONA  FIDE  PURCHASERS, 
I.  Who  are,  299,  497,  677,  743,  861. 

n.  Rights  of,  27,  29,  33,  43,  237,  275,  435,541,613,657,665,751,759,821, 
871. 

CONDITIONAL.  SALES, 
I.  Title  in  Property,  CI,  l.JS,  175,  541,  545,  757,  823. 
II.  Performance  of  Conditions,  37,  61,  71,  151,  169,  203,  293,  395. 

GIFTS, 
I.  Inter  Vivos,  55,  79,  379,  591,  627,  661,  747,  755,  831,  907. 
II.  Donatio  Causa  Mortis,  117,  383,  415,  B95,  855,  887. 


CASES  REPORTED. 


Allanl  V.  Greasert  (01  N.  Y.  1) 

Arnold  v.  Delano  (4  Cush.  33; 

Babcoek  v.  Bonnell  (80  N.  Y.  244) 

Bailey  v.  Hudson  U.  U.  Co.  (49  N.  Y.  70) 

Baldev  v.  Parker   (2  Barn.   &  C.  37) 

Baldwin  v.  WiMinnis  (3  Mete.  [Mass.]  3G5) 
Ballciiline  v.  Udiinson  (40  Pa.  St.  177)... 

Barker  v.  Dinsmore  (72  Pa.  St.  427) 

Barnard   v.   Campbell   (.->;")  N.   Y.  4.-i6) 

Barnard  v.  Camuhell  (58  N.  Y.  73) 

Beaeli'.s  Appeal  (20  All.  Rep.  475,  .'jS  Conn. 

4(H)   

Becker  v.  HallKarten  (86  N.  Y.  167) 

Bement  r.  Smith  (15  Wend.  493) 

Benedict  v.  Schaettle  (12  Ohio  St.  515).  .  . 
Bennett  v.  Cook  (6  S.  E.  Rep.  28,  28  S.  (\ 

:»3)  

Bentall  v.  Bum  (3  Barn.  &  C.  423) 

Bianclii  v.  Nash  (1  Mees.  &  W.  .54.5) 

Bill  V.  Banient  (9  Mees.  &  W.  3(>l 

Bird  V.  Mnnroe  (OG  Me.  ."..".7) 

Bishop  V.  Shillifo  (2  Barn.  &  Aid.  329  n.  a) 
Hlii\:mi  V.  SainliTs  (4  Barn.  &  C.  941)... 

Boollihy  V.  Plaisted  (51  N.  H.  430) 

I'.rnhrciok    v.    Hciston    Five   Cents   Savinj;.* 

Bank  (104  Mass.  228) 

Bradford  t.  Manlv  (13  Ma.ss.  139) 

Bridsford  v.  Crocker  (00  N.  Y.  027) 

Brooks  V.  Powers  (15  Mass.  244) 

Brown  v.  Northcutt  (13  Pac.  R<'p.  4.S.-.,  14 

Or.  529) 

Browne  v.  Hare  (3  Hurl.  &  N.  484,  4  Hnrl. 

&  N.   822) 

Bniwnfield   v.  Johnson  (18  Atl.  Rep.   543, 

128  Pa.  St.  2.54) 

Butlington  v.  (Jerrish  (15  Mass.  151!)... 
Bnlwinkle  v.  Cramer  (3  S.  E.  Rep.  770,  27 

S.  C.  370) 

Bunn  T.  Markham  (7  Taunt.  224) 

Buller  V.  Butler  (77  N.  Y.  472) 

Butler  T.  Thomson  (92  U.  S.  412) 

C'amplioll  Print ing-Press  Co.  v.  Thnrp.  CV; 

Fed.  Rep.  414) 

Cardinell  v.  Bennett  (.52  Cal.  470) 

Caulkins  v.  Hellman  (47  N.  Y.  44ti) 

Chandelor  v.  Lopus  (2  Cro.  Jae.  2) 

Chapman  v.  Murch  (19  .Tohna.  291)| 

Clark  V.  Draper  (19  N.  H.  419) 

Clark  V.  I''ey  (24  N.  E.  Rep.  703,  121  X.  Y. 

470)   

Clarkson  v.  Stevens  (1  Sup.  Ct.  Rep.  200, 

100  U.  S.  50.5) 

Coddinpton  v.  Goddard  (16  Grav.  4.30)... 
Coe  V.  Toufe'h  (22  X.  E.  Rep.  5.50,  116  N. 

Y.  273) • 

Comer  v.  Cunningham  (77  N.  Y.  391).... 
Commercial  Nat.  Bank  v.  Oill.'tte  (90  Ind. 

208)  

(^ominonwealth   v.    Fleming   (18  Atl.    Rep. 

(;22,  130  Pa.   St.  1 3S) 

Commonwealth  v.  Miller  (IS  Atl.  Rep.  938, 

131  Pa.  St.  118) 

Conner  v.  Henderson  (15  Mass.  319) .  . 
t%)oke  V.  Millard  (05  N.  Y.  352) 


Pii' ■■  P«pe 

3    Cusack  V.  Robinson  (1  Best  &  S.  299) 221 

7    Gushing  v.  Bree<l  (14  Allen,  370) 225 


Coon  V.  Spaulding  (10  N.  W.  Rep.  183,  47 
Mich.  102) 

Oiplay  Iron  Co.  v.  Pope  (15  N.  E.  Rep. 
.335,  108  X.  Y.  232) 

Crawcour,  Kx  iKirle  (9  Ch.  Div.  419) 

Crofoot  V.  Bennett  (2  N.  Y.  258) 

Cross  V.  Peters  (1  Greenl.  370) 

Cunningham  v.  Ashbrook  (20  Mo.  553)... 

\j\\V  SAI.liS. 


ir>5 
169 


173 


Davis  V.  Russell  (52  Cal.  Oil) 

Denny  v.  Williams  (5  Allen,  1 ) 

Devoe  v.  Brandt  (.53  N.  Y.  402) 

Dexter  v.  Norton  (47  X.  Y.  02) 

Doano  v.  Dunham  (79  III.  131) 

Donaldson  v.  Farwell  (93  U.  S.  631) 

Dorr  V.  Fisher  (1  C\Lsh.  271) 

Dows  V.  National  Exch.  Bank  of  Milwau- 
kee (91  U.  S.  018) 

Drake,  Ex  parte  (5  Ch.  Div.  800) 

Drury  t.  Young  (58  Md.  546) 

Dustan  v.  McAndrew  (44  N.  Y.  72) 


229 
2.« 
237 
241 
245 
249 
251 

255 
263 

207 
271 

Easter  v.  Allen  (8  Allen.  7) 275 

Edgerton  v.  Hodge  (41  Vt.  (570) 279 

Ki.hholz  v.  Bannister  (17  C.  B.  [N.  S.]  708  283 

Ellis  v.  Andrews  (50  N.  Y.  8,3) 2S7 

Ellis  V.  Hunt  (3  Term.  R.  464) 289 

Empire  State  Type  Founding  Co.  v.  Grant 
(21  N.  E.  Rep.  49,  114  N.  Y.  40) 293 

Fairbank  Canning  Co.  v.  Metzger  (23  N. 
E.  Rep.  372,  118  N.  Y.  200) 295 

Farley  v.  Lincoln  (51  N.  H.  577) 299 

Farmers'  Phosphate  Co.  v.  Gill  (16  Atl. 
Rep.  214,  09  Md.  537) 303 

Fielder  v.  Stnrkin  (1  H.  Bl.  17) 307 

First  Nat.  Bank  of  Cairo  v.  Crocker  (111 
Mass.   163) .309 

First  Nat.  Bank  of  Green  Bay  v.  Dear- 
born (115  Ma.ss.  219) 313 

First  X.Mt.  Bank  of  Toledo  v.  Shaw  (01  N. 
Y.  283) 317 

Foot  V.  Marsh  (51  N.  Y.  288) 323 


327 
333 
337 

341 

345 
349 
353 


Ganson  v.  Madigan  (15  Wis.  144) 

Gardner  v.  Lane  (9  Allen,  492) 

Giles  V.  Simonds  (15  Grav.  441) 

Gill  V.  Benjamin  (25  N.  W.  Rep.  445,  64 

Wis.  302) 

Giroux  V.  Stedman,  three  cases  (14  N.  E. 

Rep.  538,  145  Mass.  439) 

Goddard  v.  Binnev  (115  Mass.  4.50) 

Gompertz  v.  Bartlett  (2  El.  &  Bl.  849)... 
Goodman  v.  Nordnutt  (13  Pac.  Rep.  485, 

14  Or.  .529) 93 

Goodwin  v.  Holbrook  (4  Wend.  377) 355 

Gould    v.   Bourgeois  (18  Atl.   Rep.   64,   51 

N.  .T.  Law.  301) 359 

Gould    V.    Stein   (22   N.    E.   Rep.    47,   149 

Mass.  570) 363 

Gregory  v.  Morris  (96  U.  S.  619) 367 

Grieb   v.    Cole   (27    N.    W.    Rep.    579,    60 

M  ieh.  ."«)-) 371 

Groat  V.  Gile  (51  N.  Y'.  431) 375 

Grover  v.  Grover  (24  Pick.  2('il) .379 

Grymes  v.  Hone  (49  N.  Y.  17) 383 

Hague  V.  Porter  (3  Hill.  141) 387 

Hanson  v.  Busse  (45  111.  49()) .3,89 

Hardman  v.  Booth  (1  Hurl.  &  C.  803) 391 

Ilarkness    v.    Russell    &   Co.    (7    Sup.    Ct. 

Hop.  51,  lis  II.  S.  6(!.3) 395 

Hastie  v.  Couturier  (9  Exch.  102) 403 

Hatch  V.  Bayley  (12  Cush.  27) 407 

Hawes  v.  Watson  (2  Barn.  &  C.  540) 411 

Henschel  v.  Maurer  (34  N.  W.  Rep.  926. 

69  Wis.  576) 415 

Higgins  V.  Delaware,  L.  &  W.  R.  Co.  (60 

N.  Y.  553) 419 

Higgins  V.  Murray  (73  N.  Y.  2,"i2) 42." 


CASES  EEPOKTEL). 


Hillestad  t.  Hostetter  (49  N.  W.  Rep.  192, 

4ti  Minn.  393) 425 

Ilinohman  v.  I^incoln  (8  Sup.  Ct.  Rep.  309, 

124   U.    S.    3S) 427 

Uoiton   V.  Biillinton   (105  Mass.   399) 435 

Hosmer  v.  Wilson  (7  Mich.  294) 437 

Howe  V.  II:iv\vard   (108  Mass.   .'54) 441 

IIi.nil)lp  V.  .Mitclidl  (11  Adol.  &  E.  20.5).  . .  443 
Hiillmiaclier    v.    Harris's    Adm'rs    (38    I'a. 

St.  491) 445 

Ilsle.v  V.  Stnbbs  (9  Mass.  6.5) 449 

lufralls  V.  Ilcrrick   (108  Mass.  351) 4.53 

Inslis  V.  Stock  (10  App.  Cas.  263) 457 

Iron  Cliff  Co.  v.  Buhl  (3  N.  W.  Rep.  269. 

42  Mich.  SO) 403 

Jackson  v.  Tiipper  (5  N.  B.  Rep.  65,  101 

N.  Y.  51.5) 467 

.lames  v.  Patten  (6  N.  Y.  9) 469 

.Tenner  v.  Smith  (L.  R.  4  C.  P.  270) 473 

.lohnston    t.    Trask   (22   N.    E.    Rep.   377, 

116  N.  Y.  136) 477 

.Tones  v.  Earl  (37  Cal.  630) 481 

.Tones  v.  Padffelt  (24  Q.  B.  Div.  (>.->0) 483 

Jones  V.  U.  S.  (90  U.  S.  24) 487 

KimberLv  v.  Patchin  (19  N.  Y.  330) 491 

Iviiiirman  v.   Denison  (48  N.  W.  Rep.  26, 

84  Mich.  60S) 497 

Ivinney  v.  MoDermott  (8  N.  W.  Rep.  656, 

55  Iowa,  (174) .501 

Kountz  V.  Kirkpatrick  (72  Pa.  St.  376) .  .   503 

r^ee  V.  Griffin  (1  Best  &  S.  272) 509 

Lincoln  v.  (Gallagher  (8  Atl.  Rep.  883,  79 

Me.  ISO) ........ 

Litchfield  v.  Hutchinson  (117  Mass.  195).  . 

I^oeb  V.  I'eters  (63  Ala.  243) 

liUpin  V.  Marie  (6  Wend.  77) 

McConnell  v.  Hughes  (29  Wis.  537) 

McCrory  v.  Hamilton  (SS  111.  App.  490).  . . 

Macomber  v.  Parker  (13  Pick.  175) 

Mallnry  v.  Willis  (4  N.  Y.  70) 

Marlindale  v.  Smith  (1  Q.  B.  389) 

Marvin   Safe  Co.  v.   Norton   (7  Atl.   Rep. 

418,  48  N.  J.  Law,  410) . 

MeUlrura  v.  Snow  (9  Pick.  441) 

Mews  T.  Carr  (1  Hurl.  &  N.  484) 

Mitchell  V.  Cile  (12  N.  H.  390) 

Moody  V.  Brown  (34  Me.  107) ."ir.T 

Moore  v.  McKinlay  (5  Cal.  471) 7i7,'.> 

Morse  v.  Shaw  (124  Mass.  59) 5(;i 

Morse  v.  Sherman  (100  Mass.  430) 5^3 

Morton  v.  Tibbett  (15  Q.  B.  428) .  .  567 


513 
515 
519 
523 

531 
533 
.527 
535 
539 

.541 
.545 
549 

553 


National  Bank  v.  Day(on  (102  U.  S.  59).  .  573 
Newhall  t.   Central  Pac.   R.  Co.   (51   Cal 

345) 577 

Newhall  v.  L/jingdon  (39  Ohio  St.  87) .581 

Nicholson  t.  Taylor  (31  Pa.  St.  128) 585 

Nigbtinpale    v.    Eisoman    (24   N.    E.    Rep. 

475,  121  N.  Y.  288) .587 

Noble  T.  Smith  (2  Johns.  52) 591 

Norrington  t.   Wright  (6  Sup.  Ct.  Ren.  12, 

115  U.  S.  188) :...:  595 

Oliver  v.  Hunting  (44  Ch.  Div.  205) 601 

Ormrod  v.  Huth  (14  Mees.  &  W.  051).  ..  005 

Page  v.  Morgan  (15  Q.  B.  Div.  228) 009 

Palmer  v.    Hand   (13  Johns.   434) 013 

Parker  v.   Patrick  (5  Term   R.   175) 617 

Paul  V.  Reed  (52  N.  H.  130) 619 

Pecord  v.  Stedman  (14  N.  E.  Rep.  538,  145 

Mass.  43! I) 345 

Perley  v.  Balch  (23  Pick.  283) '.'.'.'.'.'.   623 

Peters  v.  Ft.   Miulison  Const.  Co.   (34  N 

W.  Rep.  190,  72  Iowa,  405) 627 

Peters  Box  &  Lumber  Co.  v.  Lesh  (20  N 

E.  Rep.  291,  119  Ind.  98) 631 

Philadelphia  &  R.  R.  Co.  v.  Wireman  (88 

Pa.    St.   2(J4) 63,-, 

Phillips  V.  Reitz  (16  Kan.  396) .'.  037 


Page 

Pitkin  v.  Noyes  (48  N.  H.  294) 641 

Pope  V.  Allis  (6  Sup.  Ct.  Rep.  69,  115  U. 
S.  363) 647 

Randijll  v.  Newson  (2  Q.  B.  Div.  102) 051 

Robertson,  In  re  (9  Ch.  Div.  419) 203 

Rodliff   V.   Dallingcr   (4   N.   E.    Rep.   805, 

141  Mass.  1) 657 

Ross  V.  Draper  (55  Vt.  404) 0()1 

Rowley  v.  Bigelow  (12  Pick.  307) 0(i.". 

Ruhl  V.  Corner  (63  Md.  179) OOlt 

Rupley  V.  Daggett  (74  111.  351) 073 

Safford   v.   McDonondi   (120   Mass.  200)..   675 

Saltus  V.  Everett  (20  Wend.  2(17) 677 

SanlMjrn  v.  Flagler  (9  Allen,  474) 685 

Sanger  v.   Waterbury  (22  N.  E.  Rep.  404, 

110  N.  Y.  371) 689 

Sawyer  v.  Dean  (21  N.  E.  Rep.  1012,  114 

N.  Y.  469) 691 

Scott  V.  Eauman  (104  Pa.  St.  593) 695 

Scott  v.  Wells  (6  Watts  &  S.  357) 097 

Scranton  v.  Clark  (39  N.  Y.  220) 701 

Scudder  v.  Worster  (11  Cush.  573)  / 705 

Seitz  V.  Brewers'  Refrigerating  Mach.  Co. 

(12  Sup.  Ct.  Rep.  46,  141  U.  S.  510) 709 

Sewell  V.  Burdick  (10  App.  Cas.  74) 713 

Shawhan  v.  Van  Nest  (25  Ohio  St.  49(j).  .   727 

Sheldon  v.  Capron  (3  R.  I.  171) 731 

Sherwood  v.  Walker  (33  N.  W.  Rep.  919, 

66  Mich.  508) 733 

Shields  v.  Pettie  (4  N.  Y.  122) 739 

Shufeldt  V.  Pease  (10  Wis.  059) 743 

Sinclair  v.  Hathaway  (23  N.  W.  Rep.  459, 

57  Mich.  CO) 745 

Smith  V.  Ferguson  (90  Ind.  220) 747 

Smith  v.  Lynes  (5  N.  Y.  41) 751 

Smith  V.  Smith  (2  Strange,  955) 755 

Spooner  y.  Curamings  (23  N.  E.  Rep.  839, 

151  Mass.  313) 757 

Spooner  v.  Holmes  (102  Mass.  503) 759 

Spraights  v.  Hawley  (39  N.  Y.  441) 703 

Stanton  v.  Eager  (10  Pick.  407) 767 

State  of  Vermont  v.  Four  Jugs  of  Intox- 
icating Liquor  (2  Atl.   Rep.  580,  58  Vt. 

140)   771 

State  of  Vermont  v.  O'Neil   (2  Atl.   Rep. 

586,  58  Vt.  140) 771 

State  of  Vermont  v.   Sixty-Eight  Jugs  of 

Intoxicating  Liquor  (2  Atl.  Rep.  586,  58 

Vt.   140) 771 

Siollcnwerck  v.  Tliacher  (115  Mass.  224)..   777 

Straus  V.  Wessel  (30  Ohio  St.  211) 781 

Stuart  V.  Wilkins  (1  Doug.  18) 785 

Stubbs  V.  Lund  (7  Mass.  453) 7S9 

Sturtevant  v.  Orser  (24  N.  Y.  538) 793 

Swanwick  v.  Sothern  (9  Adol.  &  E.  895).  .  797 
Swim  V.  Wilson  (27  Pac.  Rep.  33,  90  Cal. 

126)  799 

Talcott  V.  Henderson  (31  Ohio  St.  162) ...  803 

Talver  v.  West   (Holt.  178) 807 

Tarling  v.  Baxter  (0  Barn.  &  C.  360) 809 

Terry  v.  Wheeler  (25  N.  Y.  520) 813 

Thompson  v.  Gardiner  (1  C.  P.  Div.  777).  .  817 
Thompson  v.  Wedge  (7  N.  W.   Rep.  560, 

50  Wis.  042) .  819 

Towne  v.  Collins  (14  Mass.  5(X)) 821 

Tufts  V.  Griffin  (12  S.  E.  Rep.  08,  107  N. 

C.  47) 823 

Tufts  V.  Sylvester  (9  Atl.  Rep.  357,  79  Me. 

213)   825 

Tuthill  V.  Skidmore  (20  N.   E.   Reo    348 

124  N.  Y.  148)..... ':...'  827 

Twyne's  Case  (3  Coke,  80) 831 

Unexcelled  Fire-Works  Co.  v.  Polites  (18 
Atl.  Kep.  1058,  130  Pa.  St.  530).  ......   837 

Walker  v.  Davis  (18  Atl.  Rep.  190,  05  N. 
H.  1  (0) 839 

Walter  A.  Wood  Mowing  &  Reaping 
Mach.  Co.  V.  Gaertner  (30  N.  W.  Reo 
100,  03  Mich.  520) '^'  841 

Ward  V.   Shaw  (7  Wend.  4<>4) '.'.'.   845 


CASKS  lllil'OinEU. 


Pace 

Ware,  In  re  (5  Ch.  Div.  866) 263 

Watsou  V.  Uoodp  (40  N.  W.  Rep.  491,  30 

Nob.  264) &iO 

Wells  T.  Tucker  (3  Bin.  .366) 855 

Wheelhouse  v.  Parr  (6  N.  E.  Rep.  787,  141 

Mass.  503) 8.59 

Wheelwright  v.  Depcyster  (1  Johns.  471) .  .  861 

Whitcomb  v.   Whitm-v  (24  Mich.  486) 867 

White  V.  Spettigue  (13  Ue^s.  &  W.  603)..  871 

Whitehouse  v.   Frost  (12   East.   614) 875 

Whitmarsh  v.  Walker  (1  Mefc.  [Mass.]  313)  879 

Wieler  v.  Schilizzi  (17  C.  B.  019) 883 

Wilcox  V.  Matteson  (9  N.  W.  Rep.  814,  53 

Wis.  23) &87 

Williams  v.  Allen  (10  Humph.  330) 891 


Williams  T.  Bacon  (2  Gray,  3.87) 893 

Williams  v.  .Tackman  (16  (Jray,  514) 897 

Williams  v.  Merle  (11  Wend.  80) 901 

WindmuUer  v.   Pope  (14  N.  E.   Kep.  436, 

107  N.  Y.  674) 903 

Winfield  v.  Dodge  (7  N.  W.  Rep.  900,  45 

Mich.    3.-..->) 905 

Wing  V.  Merchant  (57  Me.  383) 907 

Winsor  v.  Lombard   (18  Pick.   57) 911 

WofKl  V.  Boyuton  (25  N.  W.  Rep.  42,  64 

Wis.   205) 915 

Wood  V.  Manley  (11  Adol.  &  E.  34) 919 

Wood   Mowing  &    Reaping   Mach.   Co.   v. 

Gacrtner  (30  N.  W.  Kep.  106,  63  Mich. 

520)  Sil 


ILLUSTRATIVE  CASES 


THE  LAW  OF  SALES 


(1)^ 


ALLARD  V.  GllEASEIlT. 


3 


ALLAItn  T.  GKKASERT. 

(01  N.  Y.  1.) 

Commission  of  Appeals  of  New  York.    Sept. 
Term,  1874. 

Action   for  got)ds  sold    and    delivered. 
Defendant    film    orally    OKrced    with    an 
af-ent  of   phiiiitiffs   to   lui.v  by  sample   the 
roUowInK  bill  of  liatH  and  capH: 
Of  c'ase  Xo.   'Ml,  %  doz.   child's 

fyOKliorii    sylviins,    at    $11    per 

rloz $  5  r,o 

Of  case  No.  312,  one  doz.  harvest 

hats,  at 4  50 

Of  case  No.  371,  half  doz.  Pana- 
ma huts  at 28  50  a  doz. 

Of  case  Xo.  372,  half  doz.  I'ana- 

ma  hats  at 36  00  a  doz. 

Of  case  Xo.   326,   one  doz.   palm 

leaf  hats,  at 2  50  a  doz. 

Of  c.'ise  Xo.  .'524,  one  doz.   palm 

leaf  hats,  at 3  00  a  doz. 

Of  case  Xo.  320,  one  doz.   white 

(ileiiwood,  at 15  00  a  doz. 

Of  case  No.  159,  one  doz.  black 

Al|)ine,   at 24  00  a  doz. 

Of  case  No.   309,  one  doz.   Leg. 

harvest,  at 3  25  a  doz. 

Tlie  SHU' pies  were  Kliown  by  the  aKent, 
and  tiiepricesof  tlicdifferen t  stylesnanied, 
and  a  nieinorandiim  made  by  the  agent 
of  the  nuniberof  each  kind  [nirehased.  No 
ineniorandnin  was  made  in  writing,  and 
sinni'il  l>y  either  party.  When  the  goods 
were  sent,  by  express,  as  ordered,  defend- 
ants refused  to  receive  them  because  the 
one  dozen  harvest  were  in  someslight  par- 
ticular different  from  the  samples  shown. 
Itcfendants  moved  for  a  nonsuit  because 
( 1  )■' that  the  agreement  under  which  the 
plaintiffs  seek  to  recover  is  within  the 
statute  of  frauds,  and  void;  (2)  that  the 
Older  for  the  goods  constitutes  one  entire 
contract,  and  the  plaintiffs  have  failed  to 
fulMll,  on  their  part,  to  ilcliver  the  harvest 
hats  of  the  descrijition  ordered;  that,  b.v 
reason  of  said  failui'e.  the  defendants  had 
a  right  to  refuse  to  receive  any  of  tlie 
goods  sent."  The  court  nonsuited  plain- 
tiffs on  the  last  ground. 

Uanid  Wood,  for  appellants.  Bowen  & 
I'itts,  for  respondents. 

EAUL,  (y"  The  judge  at  the  circuit  re- 
garded this  ns  an  entire  contract  of  sale, 
and  not  severable;  and  if  ho  was  right  in 
this,  he  properly  nonsuited  the  plaintiffs 
upon  that  ground.  If  it  was  an  entire 
contract,  within  the  meaning  of  the  law, 
the  plaintiffs  could  recover  only  by  show- 
ing entire  performance,  by  a  full  delivery 
of  all  the  articles  iiurchased.  But  it  is  not 
necessary,  in  this  case,  to  determine  wheth- 
er this  was  an  entire  or  a  severable  con- 
tract, because  the  defendants  also  moved 
for  a  nonsuit  upon  the  ground  that  the 
contract  of  sale  was  void  uniler  the  stat- 
ute of  frauds.  .Vltliougli  the  judge  did  not 
place  the  nonsuit  uiion  this  ground,  it 
may  he  considered  here.  He  nonsuited 
the  plaintiffs,  and  even  if  he  gave  a  wrong 
reason  for  it.  and  placed  it  upon  the  wrong 
ground,  the  nonsuit  may  be  upheld  upon 
any  ground  appearing  in  the  case. 
Curtis    v.  Hubbard,  1    Hill,   3;jG;  ijimar   v. 

LAW  SALES 


Canaday,  53   X.  Y.    2'.)S;  13  Am.    Rep.   523; 
Deland  v.  Richardson,  4  Den.  9.t. 

Even  if  this  were  a  severable  contract  so 
far  as  relates  to  the  performance  of  the 
same,  within  the  meaning  of  the  statute 
of  frauds  it  is  an  entire  contract.  The 
reasons  for  holding  it  to  be  such  are  clear- 
ly set  forth  in  Baldey  v.  Parker,  2  H.  &  C 
41,  and  Story  Sales.  §  241.  This,  within 
the  meaning  of  the  statute  of  frauds,  is  a 
ctHitract  for  the  sale  of  goods  for  the  price 
of  §.JOorniore,and  as  there  was  no  noteor 
memorandum  or  ])ayment,  the  (juestion 
to  be  determined  is.  whether  the  goods 
were  accepted  and  received  by  the  buyers 
so  as  to  satisfy  the  statute.  By  the  terms 
of  the  contract,  the  goods  were  to  be  de- 
livered to  the  Merchants'  Union  Kxpross, 
to  be  carried  to  the  defendants,  and  they 
were  so  delivered.  It  is  well  settled  that 
when  there  is  a  valid  contract  of  sale,  a 
deliver.v  to  a  carrier,  according  to  the 
terms  of  the  contract,  vests  the  title  to 
the  property  in  the  buver.  It  was  decided 
in  Hodgors  v.  Phillips,  40  X.  Y.  .")1!»,  that  a 
delivery,  according  to  the  contract,  to  a 
general  carrier,  not  designated  or  selected 
by  the  buyer,  does  not  constitute  such  a 
delivery  and  acceptance  as  to  answer  the 
statute  of  frauds.  But  it  has  been  held 
that  when  the  goods  have  been  accepted 
by  the  buyer,  so  as  to  answer  that  portion 
of  the  statute  which  requires  acceptance, 
a  delivery  to  a  carrier  selected  by  the 
buyer  will  answer  that  portion  of  the 
statute  which  requires  the  buyer  to  re- 
ceive. Cross  V.  O'Dounell,  44  X'.  Y.  G6I ;  4 
Am.  liep.  721.  So  far  as  I  can  discover,  it 
has  never  yet  been  decided  in  any  case 
that  is  entitled  to  respect  as  authoritj", 
that  a  mere  carrier  designated  by  the 
buyer  can  both  accept  and  receive  the 
goods  so  as  to  answer  the  statute.  Benj. 
Sales,  124.  The  cases  upon  this  subject  are 
cited  and  commented  ujjon,  and  the  prin- 
ciples applicable  to  the  ()ucstion  are  so 
fully  set  forth  in  the  two  recent  cases 
above  referred  to  that  no  further  citation 
of  authorities  or  extended  discussions  at 
this  time  is  important.  It  will  be  found 
by  an  examination  of  the  authorities,  that 
in  most  of  the  cases  where  a  delivery  to 
a  carrier  has  been  held  to  satisfy  the  stat- 
ute of  frauds,  there  had  been  a  prior  ac- 
ceptance of  the  goods  by  the  buyer  or  his 
agent.  A  buyer  may  accept  ond  receive 
through  an  agent  exi)ressly  or  Impliedly 
appointed  for  that  purpose.  There  is 
every  reason  for  holding  tiiat  n  designated 
carrier  may  receive  for  the  buyer,  because 
he  is  expressly  authorized  to  receive,  and 
the  act  of  receiving  is  a  mere  formal  act 
reijuiring  the  exercise  of  no  discretion. 
But  tliere  Is  no  reason  for  holding  that 
the  buyer  in  such  case  intended  to  clothe 
the  carrier,  of  whose  agents  he  may  know 
nothing,  with  authority  to  accept  the 
goods,  so  as  to  conclude  him  ns  to  their 
quality,  and  bind  him  to  take  them  as  a 
compliance  with  a  contract  ol  which  such 
agents  can  know  nothing.  This  case  fur- 
nishes as  good  an  illiistrjition  an  any. 
The  uoods  were  lioxcil:  the  carrier  could 
know  nothing  aliout  them:  and  itsagents 
had  no  right  to  unpack  and  handle  them. 
Its  sole  duty  and  authority  was  to  receive 


ALLARD  V.  GREASERT. 


nnil  transport  tliem.  In  such  n  case,  it 
woulcllie  unite  absurd  to  hold  that  the 
currier  had  an  inii)lied  authority  from  the 
buyer  to  accept  the  goods  for  him.  If  the 
bu'ver  does  not  accept  in  person,  he  must 
dr)"it  through  an  authorized  agent.  Here 
it  is  not  claimed   that  there  was  express 


authority  conferred  upon  the  carrier  to 
accept,  and  the  circumstances  are  not 
su:-h  that  such  authority  can  be  implied. 

Upon  this  last  ground  therefore  the  non- 
suit was  proper,  and  the  judgment  must 
be  affirmed,  with  costs. 

All  concur. 


AUXOLD  V.  DELANO. 


ARNOLD  v.  DELANO. 

(4  Cu.sh.  3.3.) 

Supreme  Judicial   Court  of   M.issachusetts. 
Sept.  Term,  1.840. 

This  was  an  action  of  trover,  brought 
by  the  plaiutiff  ns  the  aHsiKiiee  of  Artliur 
Sowerby,  an  insolvent  deljtor,  and  was 
Buliniittetl  to  tbe  court  of  common  pleas 
upon  the  followinir  airreecl  stutement  of 
facts: 

On  the  3()th  of  MQrcii,184S,  Sowerby  and  j 
one  (irunt.  who  were  partners  as  silk  ! 
manufacturers.  In  Northanipton,  pur- 
chased of  Delano,  the  defendant,  sixty-live 
cords  of  wood,  then  i)iled  with  a  much 
larmier  quantity  on  Lelano's  land.  The 
wood  sold  was  measured  off  at  the  time 
of  th(!  sale,  but  no  otherwise  separateiJ 
from  the  residue,  than  by  means  of  a  stake 
putdo  wn  to  desiKuate  the  extent  of  sixty- 
llveconls.  The  contract  i,\  as  made  with 
Sowerby,  and  a  bill  (jf  the  wood  was  given 
him  by  Deluno,  as  follows: 

"  Messrs.  Sowerby  &  tJrant.  Bo't  of  C.\ 
Delano.  1S4S,  March  :!Otli.  6.')  cords  wood, 
?'.)7.U(J,  Received  payment  by  note  at  G 
mos.  at  Northampton  Bank.    C.  Delano." 

At  the  time  of  MiaUing  the  contract, 
there  Wf.s  no  formal  takin(<  possession  or 
delivery  c)f  the  wood,  except  as  above 
slated,  but  the  purchasers  were  to  remove 
the  san)e  before  the  Ist  of  April,  1849. 

On  the  I'Dth  of  .lune,  1S48.  Sowerby  np- 
plied  personally  for  the  benelit  of  the  in- 
solvent la  w,  an<i  a  warrant  was  aceord- 
ininly  issued  to  Ansel  Wright,  as  mes- 
sentrer,  on  the  sanie  day.  Possession  was 
taken  of  the  property  at  tlie  silk  works  by 
the  niesseuKer,  on  the  ."Kith  of  .June,  and 
a  schedule  of  assets  was  furnished  him  by 
Sowerby  on  the  same  dui'.  On  the  sched- 
ule was  the  followinti  entry,  in  tiie  hund- 
writin;:  of  the  nieKsen;jer:  "(!.")  cords  of 
woixi  on  V.  Delano's  lanil."  Xo  formal 
possession  was  taken  of  the  wood  liy  the 
niesseuKer;  nor  was  any  entry  made  by 
him  on  the  land  where  it  was  ]iiled,  which 
was  distant,  in  fact,  two  miles  or  more 
from  the  silk  works.  On  the  l.')th  of  .July, 
Sowerby  furnished  a  schedule  of  credit- 
ors, on  which  ivas  this  entry:  "(."ornelins 
Delano,  Northampton.  Note.  Wood.  No 
security.     S'.IT  " 

On  the  eveniuK  of  Saturday,  the  1st  of 
July,  Delano,  havinj;  heard  of  the  insol- 
vent proceedings,  nave  the  messenger  no- 
tice that  the  wood  had  not  been  paid  for, 
and  that  he  cluimecl  to  hold  it,  until  the 
price  should  he  paid.  Delano  also  saw 
Sowerby  the  same  eveninu,  and  reiiuested 
him  to  ;;ive  up  the  bill  and  take  the  note. 
Sowerby  took  until  the  next  .Monday 
morniuK  for  consideration,  and  beinii  then 
apilii'd  to,  jinve  up  the  bill  to  Delano, 
who  thereupon  canceled  the  note.  The 
lii-st  publication  of  notice  of  the  insolvency 
did  not  take  i)lacc  until  Monday  after- 
noon. 

On  the  17th  of  June,  1S48,  Sowerby  nn.l 
(Jraiit  advertised  a  dissolution  of  part- 
nership, and  save  public  notice  that  Sow- 
erby was  duly  authorized  to  settle  all 
accounts  of  tlie  late  lirm.  .\s  a  part  of 
the  terms  of  <liss()lution.  Sowerby  under- 
took to  pay  all  the  partnership  debts,  and 


Orant  conveyed  to  him  all  his  right  and 
title  in  and  to  the  [lartnership  property 
but  this  conveyance  was  not  known  to 
Deluno.  At  the  time  of  the  dissolution, 
the  partners,  severally,  as  well  as  the 
partnership,  were,  in  fact,  deeply  insol- 
vent. 

The  plaintiff  was  appointed  assignee  ol 
Sowerby  in  October,  ls48;  the  first  meet- 
ing of  creditors  having  been  continued  on 
account  of  certain  legal  objections;  and 
the  assignment  was  then  first  made  by 
the  commissioner. 

To  the  deu:aud  made  by  the  assignee  on 
Delano  for  the  wood,  Delano  answered 
that  lie  could  have  it  whenever  he  paid 
for  it;  and  Delano  has  always  been  will- 
ing to  give  up  the  wood  upon  poyinent  of 
the  price.  Siibse(|ucnt  to  tlie  Ist  ol  April, 
1840,  Delano  sold  a  i.ortion  of  the  wood 
measured  off;  but  there  has  always  re- 
mained in  the  same  lot  more  than  sixty- 
five  cords  of  similar  <|unlity,  of  which  he 
has  <jffered  to  give  up  that  amount,  upon 
payment  ot  the  price  agreeil  upon. 

Upon  the  foregoing  statement  of  facts, 
the  court  of  common  pleas  gave  judgment 
for  the  plaintiff,  whereupon  the  defendant 
appeale.l  to  this  court. 

The  case  was  argued  in  writing,  as  fol- 
lows, on  the  points  considered  by  the 
court. 

C.  P.  Huntington,  for  pin  in  tiff.  C.  Delano, 
for  defendant. 

SHAW,  C.  J.  This  is  an  action  of 
trover,  to  recover  the  value  of  sixty-five 
cords  of  wood,  brought  by  the  plaintiff, 
as  the  assignee  of  Arthur  Sowerby,  an  in- 
so'vent  del)tor.  It  is  submitted  to  the 
court  upon  an  agreed  statement  of  facts, 
which  being  clearly  stated,  It  is  not  nec- 
essary to  recapitulate. 

On  these  facts,  the  plaintiff  contends, 
that  there  was  a  complete  sale  and  pur- 
chase of  the  wood,  by  which  the  property 
became  ve.steil  in  Sowerby  and  (Jruut; 
that  by  the  dissolution  of  partnership  be- 
tween tlieni  in  June,  1S4S,  and  the  transfer 
by  Grant  to  Sonerby  of  &I1  his  right,  title 
and  interest  in  the  partnership  property, 
.Sowei'by  sti[)ulating  to  pay  all  the  part- 
nership debts,  this  property  l>ecame  vested 
in  Sowerby:  and  that  by  his  subseijuent 
insolvency,  the  procredini;s  under  it,  and 
tlie  assignment  to  the  plaintiff,  the  same 
title  to  the  property  became  vested  in 
him. 

On  the  other  hand,  thedefendnnt  insists, 
th.'it  thc)ugh  the  wood  was  sold  and  meas- 
ured off,  with  a  license  to  the  purchasers 
to  come  on  to  his  land,  an<l  take  it  away 
as  they  wanted  it,  at  any  time  within  one 
year;  and  though  a  credit  of  six  months 
was  given  for  the  purchase  money,  and  a 
note  was  given  to  the  plaintiff  payable  at 
the  Nortliaiii|iton  ISank  In  six  months; 
yet  as  the  wood  remained  as  It  originally 
lay  on  his  premises,  it  was  in  his  actual 
possession;  and,  as  the  ]inrchasers  be- 
came insolvent,  and  legal  proceedings  in 
insolvency  were  instituted  against  thera, 
before  the  price  of  the  wood  had  been 
paiti,  he  had  a  right  to  detain  the  wood 
until  payment  or  its  etiiiivalent. 

The  cause  has   been  extremely  well   ar- 


ARNOLD  V.  DELANO. 


Riie<l  on  both  sides,  unrl  many  nuthoiitics 
linve  liHcii  cited.  Bvit  without  tjoiiiK  oviT 
tlie  wliclu  )j;r()miil.  it  in  proposed  to  state 
only  wh'it  we  uiidei-Htund  to  l)e  the  rules 
of  liiw  l>euriIl^' upon  the  snl).icct,  and  to 
apply  them  to  the  facts  of  the  case  as  they 
appear  in  the  a^ieed  statement. 

■J'here  is  niunifestly  amarkeil  distinction 
lietween  those  arts,  which,  as  hetween 
the  vendor  anrl  vendee  upon  a  contract  of 
siili'.jio  to  make  a  constructive  delivery 
and  to  vest  the  property  in  the  vendee, 
anil  that  actual  delivery  by  the  vendor  to 
the  vendee,  which  puts  an  enii  to  the  rijilit 
of  the  vendor  to  liold  the  KO<'Js  as  secu- 
rity for  the  price. 

\Vhen  Koods  are  sold,  and  there  is  no 
Ktipnlatioii  for  creilit  or  time  allowed  for 
payment,  the  venilor  hiiR  liy  the  common 
law  a  lien  for  the  price;  in  other  vi-ords, 
he  is  not  bound  actually  t((  part  with  the 
possession  of  the  goodH,  witiiout  beinR 
paid  for  them.  The  term  "lieu"  Imports, 
that  l)y  the  contract  of  sale,  and  a  form- 
al, symbolical  or  constructive  delivery, 
the  proi)erty  has  vested  in  the  vendee;  l)e- 
causo  nu  man  can  have  a  lien  on  his  own 
floods.  The  very  ilehnition  of  a  lien  is,  a 
rittht  to  hold  uoods,  the  property  of  an- 
other, in  security  for  some  debt,  duty  or 
other  (ddifiMtioii.  If  the  holder  is  the 
owner,  the  rifjht  to  retain  is  a  rinht  inci- 
dent to  the  riftlit  of  property ;  if  he  have 
had  a  lien,  it  is  merged  in  the  general  prop- 
erty. 

A  lieu  for  the  price  is  incident  to  the  con- 
tract of  sale,  when  there  is  no  stipulation 
tlierein  to  the  contrary;  because  a  man  is 
not  reuuired  to  part  with  his  jioods,  un- 
til he  is  jiaid  for  them.  But  conventio 
legeni  vincit ;  and  when  a  credit  is  niveu 
by  agreement,  the  vendee  lias  a  right  to 
the  custody  and  actual  possession,  on  a 
promise  to  pay  at  a  future  time,  lie  may 
then  take  the  goods  away,  and  into  his 
own  actual  possession;  and  if  he  does  so, 
the  lien  of  tlie  vendor  is  gone,  it  lieing  a 
right  incident  to  the  possession. 

I'.ut  the  law,  in  holding  that  a  vendor, 
who  has  thus  given  credit  for  goods, 
waives  his  lien  for  the  piice,  does  so  on 
one  implied  condition,  which  is,  that  the 
veujlee  shall,  Jieep  his  credit  gootT  ~Tt, 
therefore,  before  pay ment,  the  vendee  be- 
come l)ankru|)t  or  insolvent,  and  the  ven- 
dor still  I'l  tains  the  custody  of  the  gcjods, 
or  any  part  of  them  ;  or  if  the  goods  are 
in  the  hands  of  a  carrier,  or  middle-man, 
on  their  way  to  the  vendee,  and  have  not 
.vet  got  into  his  actual  possession,  and  the 
vendor,  before  tliey  do  so,  can  regain  his 
oclual  /x.ssession,  by  a  stoppage  in  tran- 
situ; tiien  his  lien  is  restored,  and  lie  may 
hold  the  goods  as  security  for  the  price. 

The  princiide  we  take  to  be  well  settled, 
but  the  dilliculty  which  arises  in  practice, 
— one  which  has  given  rise  to  so  many 
cases, — lies  in  iletermining  what  is  such 
an  actual  chansre  of  (lossession  from  the 
vendor  to  the  vendee,  as  shall  be  deemed 
to  put  an  end  to  the  vendor's  lien.  Some 
cases  seem  to  he  clear,  and  to  illustrate 
the  rule.  If  the  goods  are  delivered  to  the 
vendee's  oW!>  servant,  agent,  wagoner, 
or  shipmaster,  that  is  in  law  a  delivery 
to  tlie  \endee  himself.  So  if  poods  are 
Htored   in    u   commou    warehouse,  as   the 


dock  warehouses  at  the  London  docks,  and 
entered  in  the  liooks  as  the  proi)erty  of  A. 
B.,  and  deliverable  to  him,  and  a  dock 
warrant  issued,  and  afterwards,  upon 
the  pi-oper  order  of  A.  B.  on  the  warrant, 
the  whole  or  a  i)art  are  transferred  to  (?. 
P.,  and  entered  in  like  manner  in  his  name, 
this  is  an  actual  change  of  custody,  con- 
trol and  possession,  though  the  goods 
are  not  moved  from  their  position.  So, 
if  the  seller  sustain  different  characters, 
as  if  a  person,  who  is  a  livery  stable 
keeper,  having  a  horse  to  sell,  makes  u 
sale  to  C.  D.,  and  then  transfers  the  horse 
to  his  livery  stable,  to  be  kept  for  C.  D. 
at  a  stipulated  weekly  hire,  this  may  be 
regarded  as  an  actual  change  of  custody 
and  possession. 

But  by  far  the  most  common  case  which 
ticcurs,  is  where  goods  are  ordered  by  let- 
ter, on  credit,  to  be  sent  from  one  country 
to  another,  or  from  one  part  of  the  same 
country  to  another,  and  are  accordingly 
forwarded  by  a  common  carrier.  There, 
as  the  carrier  is  not  the  servant  of  the 
vendee,  the  goods,  though  they  have  left 
the  actual  possession  of  the  vendor,  if 
they  have  not  reached  the  actual  custody 
of  the  veudee,  or  the  ultimate  i)lace  of  tles- 
tiuation  ordered  by  him,  may  be  stopped 
in  transitu  by  the  vendor;  and  if  he  can 
thus  stop  them,  he  regains  !iis  lien. 

Now  to  apply  these  rules  to  the  present 
case:  it  appears  to  us  very  clear,  that 
tliore  was  a  good  sale  and  delivery  of  the 
wood  to  Grant  and  .Sowerby.  The  wood 
was  measured  and  marked  off,  so  that 
the  very  sticks  composing  the  sixty-live 
cords  would  be  iilentified.  And  thereasou, 
why  marking,  measuring,  weighing,  &c., 
is  necessai'y.  is,  that  the  particular  goods 
may  be  identified.  If  ten  barrels  of  oil  are 
sold,  lying  in  a  tank  of  thirty  barrels,  the 
buyer  can  identify  no  part  of  it  as  his,  un- 
til itis  measured.  So,  if  fifty  bales  of  cot- 
ton are  sold  out  of  one  hundred,  no  par- 
ticular bales  are  identified  until  separa- 
tion. But,  if  they  are  capable  of  being 
identihed,  and  Ity  the  contract  of  sale  are 
identified,  that  is  surticient,  and  the  prop- 
erty passes ;  as,  if  in  the  last  case,  there 
are  one  hundred  bales  of  cotton,  num- 
bered from  one  to  one  hundred,  and  the 
contract  is  for  the  fifty  odd  nunibers,  or 
the  hfty  even  nunibers,  or  any  other  speci- 
fied fifty  nnraliers,  the  bales  sold  are  iden- 
tified though  notseparated.  Inthepreseut 
case,  the  wood  was  marked  off  and  iden- 
tified, aud  the  vendees  had  a  license  for 
o!ie  year  to  roiue  on  to  the  vendor's  land 
and  to  take  it  away  This  was  a  com- 
plete sale  and  a  constructive  delivrry,  so 
as  to  vest  the  property  inOrant  and  Sow- 
erby  ;  and,  <>n  their  dissolution  and  trans- 
fer, it  vested  in  Sowerby,  and  by  the  as- 
signnicnt  in  his  assignee.  Then,  the  (jucs- 
tion  is,  w  1, ether  the  defendant  had,  under 
tlie  circumstances,  a  lien  for  the  price,  and 
we  think  he  had. 

The  purchasers  had  a  license  to  go  on  to 
the  defendant's  land,  and  take  the  wood; 
whether  this  license  was  revocable  or  not, 
it  is  not  necessary  to  consider,  as  it  was 
not  in  fact  revoked.  But  the  vendees  did 
not  enter  and  take  the  wood  ;  it  remained 
ou  the  vendor's  land,  and  in  his  possession, 
in    the   same   manner  as  before  and  at  the 


AUXOLI)  V.  DELANO. 


time  of  tlip  sale.  The  vcikJov  octeil  in  no 
new  capacity;  lie  was  to  receive  notliinu 
for  kee|)inK  ;  lie  was  precisely  in  the  condi- 
tion of  a  vendor,  who  l)ad  not  parted  will) 
the  possession  and  eiistoily  of  the  i^oods 
sold.  And  this  was  the  state  c)f  things, 
/  when  Sowerhy  went  into  insolvency; 
1  upon  which  event,  \\e  tliinlt,  tlie  vendor 
(  was  remitted  to  liis  ri^ht  to  keep  iiosses 
Sinn  of  the  wood  as  security  for  tlie  price. 
Such  a  vendor  in  jiossession  is  rega riled 
a.s  haviii;c  n  hiKlier  equity  to  retain  foi-ihe 
|)rice,  than  the  assignee  of  a  debtor,  who 
lias  not  paiil  for  the  property,  has  to 
claim  it  for  the  Kt'lieral  creditors. 

Sometinres  a  (inestion  may  arise  as  to 
what  constitutes  an  Insolvency,  and 
whetlier  a  nierestoppa^e  of  payment,  and 
failure,  in  the  popular  sense,  is  sulli'.ient. 
In  this  case,  there  is  no  donlit,  hecansp 
there  was  an  insolvi'iicy  declared  l)y  law, 
and  a  seciuc'stration  of  all  the  vendee's 
property,  under  which  this  wood  is 
claimed  liy  the  plaintiff. 

If  it  might  be  supposed,  that  tlie  s'vinR 
of  a  noie  in  this  case  was  a  payment, 
which  would  vary  the  case  from  that  of 
a  siiiiph!  promise  to  pay  for  the  wood, 
we  think  the  answer  i.s,  that  a  promissor.v 
note,  even  if  in  form  ncKotiahle,  whilst  it 
remains  in  the  hands  of  tlie  vendor  an<l 
not  negotiated,  but  reaily  to  be  delivered 
up  on  the  discharge  of  the  lien,  is  re- 
garded as  the  evidence  in  writing  of  a 
promise  to  pay  for  the  goods  purchased, 
and   does  not  vary  the  rights   of   the  par- 


ties.    Thurston  V.  IJIanchard,   22  Pick.  18. 

Tlie  fact,  that  after  the  proceedings  Id 
insolvency  commenced,  and  becaine  kncjwn 
to  the  defendant,  he  applied  to  Sowerby 
and  got  up  the  bill  of  sale,  cannot  of  it- 
self, we  think,  avail  the  defendant.  The 
insolvent  could  not,  in  that  state,  vacate 
the  sale,  or  reconvey  tho  property  ;  and  if 
the  wood  was  worth  more  tlian  the  lien 
ot  the  defendant  upon  it,  we  think  that 
the  assignee,  fin  paying  the  defendant  the 
price,  was  entitle<l  to  the  wood  for  the 
benefit  ot  the  general  creditors;  and  this 
was  a  right  which  the  insolvent  could 
not  defeat. 

A  fact  was  stated,  on  the  port  of  the 
plaintiff,  as  of  some  weight,  namely,  that 
after  the  expiraticni  of  one  year  from  the 
sale,  the  defemlant  sold  a  part  of  the 
wood.  Whether,  at  that  fine,  he  had 
an  absolute  right  to  sell  the  wo<id  or  not, 
it  seems  t(j  us,  that  such  sale  can  have  no 
effect  on  this  claim.  The  plaintiff,  if  he 
can  recover  at  all,  must  recover  on  the 
strength  of  his  own  title.  He  must  prove 
a  conversion.  'I'he  action  of  trover  ad- 
mi's  that  the  defendant  obtained  the  [los- 
session  rightfully;  then,  if  he  hml  a  lien 
and  a  right  to  liold  until  the  |)riee  was 
paid,  his  refusal  to  deliver  the  wood  on 
(leinand  to  tlie  plain  tiff,  (such  demand  not 
being  accompanied  with  a  tender  of  the 
price,)  was  no  evidence  of  conversion; 
and.  until  -luch  tender  made,  the  plaintiff 
has  no  ground  of  couiplaint. 

.luUgment  for  the  defendant. 


BABCOCK  V.  BONNELL. 


11 


BABfOCK  V.  BONNELL. 

(80  N.  Y.  244.) 

Court  of  Appeals  of  New  York.    Jan.  Term. 
1880. 

Action  by  the.'KlininiHtratrix  of  Bnbcock 
agtiiiiHt  Bounell  for  an  accountinfj  for  the 
proceuilHof  a  policy  of  inHurance  taken  out 
on  the  life  of  liabcoek,  and  delivered  to 
defendant  as  collateral  necurity  for  two 
proiniHsory  notcH  of  Babcock  &  Co.  for 
.f4,fl7S.4S.  Bonnell  afterwards  received 
from  one  VVlieelriRht  .fUl'.j  in  full  satiHfac- 
tion  of  the  notes  which  were  delivered  to 
Babcock  &  Co.  and  destroyed. 

Wrn.  W.  Niles,  for  appellant.  Julien  T. 
Davis,  for  respondent. 

(;IIL'RCH,  C.  J.  The  findinR  of  the  trial 
jud^e  that  the  poIic.v  was  taken  out  and 
delivered  to  the  defendant  as  collateral 
security  for  tlie  paynient  of  the  indebted- 
ness of  Babcock  &  Co.  to  him  was  war- 
ranted by  the  evidence.  No  other  conclu- 
sion could  be  arrived  at,  and  the  evidence 
is  substantially  uudi8|)uted. 

Some  years  afterward  Mr.  Babcock  ex- 
pressed a  desirenot  to  bere;;ar(le(l  as  hav- 
ing an  interest,  and  stated  that  the  entire 
interest  was  in  thedefendant ;  but  I  do  not 
think  that  this  e\pres.«ion,  under  the  cir- 
cumstances, would  have  the  effect  of  a  re- 
lease, orcreate  an  estoppel.  'I'here  is  no  dis- 
pute tliatat  the  time  the  policy  was  taken 
out,  there  was  an  itKlebtedness  in  favor  of 
the  defendant  af^ainst  Babcock  &  Co.,  evi- 
denced by  two  notes,  aniountinja:  to 
.f4,(i7S.4S.  The  policy  was  issued  in  Feb- 
ruary, ISTO,  and  it  is  claimed  and  found 
that  in  Ajiril,  IMO,  these  notes  were  com- 
promised and  settled,  and  that  the  defend- 
ant received  fioni  one  Wheelrif^ht,  on  behalf 
of  Babcock  &  Co.,  .f92.')  in  money,  in  full 
satisfaction  and  <lischar^;eof  said  indebted- 
ness, and  delivered  and  surrendered  said 
notes  to  him,  and  that  they  were  after- 
ward delivered  up  to  I'.ahcock  it  Co.,  who 
destroyed  and  canceled  them.  WheelriRht 
testified  that  he  inirchased  the  notes  of 
the  defendant,  and  i)aid  his  own  nione.v, 
and  delivered  them  to  Babcock  &  Co.  up- 
on beiuf?  repaid  that  amount  and  his  ex- 
penses. In  eitlier  view  we  think  the  debt 
was  dischariied.  It  was  nn  executed  ac- 
cord. Nothing  remained  executory,  and 
it  operated  as  a  full  satisfaction.  A  mere 
pronii.se  to  accept  less  than  the  full 
amount  of  a  debt  althonjih  1  he  sum  prom- 
ised has  lieen  paid  has  been  held  not  sutli- 
cient;  hut  when  the  security  has  been  sur- 
ren<lered,  or  some  act  done  of  a  like  na- 
ture, there  is  nt)  reason  in  law  or  morals, 
why  the  party  should  not  be  bound. 
Kronier  v.  Heiin,  7.5  N.  Y.  nH;  31  Am.  Kep. 

4yi. 

It  may  be  that  the  defendant  Intended 
to  hold  the  policy  of  insurance  to  indem- 
nify him  for  the  deficiency,  but  there  was 
no  aureement  to  that  effect,  and  the  de- 
fendant's letters  indicate  that  he  had  re- 
Harded  ihe  det)t  fully  released  and  can- 
celed. The  defendant  claims  also  to  hold 
the  policy  as  security  for  the  balance  of 
an  additional  indebtedness  of  :fl,'_'J(i.-14 
and  interest,  after  applying   the   proceeds 


of  a  cargo  of  coal,  the  finding  In  respect 
to  which  is  here  inserted.  "F«>urth.  On 
the  15tli  day  of  November,  IKG!),  thedefend- 
ant sold  a  carRO  of  coal  to  said  Charles 
A.  Babcock  &  Co.,  and  took  a  note  in 
payment  therefor  of  $l,:;i!l!.44,  due  March 
1.'),  1S70;  the  said  last-mentioned  cargo  of 
coal  wasshiiiped  to  said  Charles  A.  Bab- 
cock &  Co.  by  the  schooner  llepzibah,  on 
or  about  the  21st  day  of  February,  1S70, 
thedefendant  through  his  agent,  Hdward 
(lUllager,  stopped  the  said  last-mentioned 
cargo  of  coal  in  transitu,  took  possession 
thereof  and  disallirmed  the  contract  of 
sale  therefor,  and  on  the  4th  day  of  May, 
1S70,  sold  the  said  last-mentioned  cargo  of 
coal  to  one  E.  S.  Farrar. "  If  tl)is  finding 
can  be  sustained  as  a  finding  of  fact,  it 
disposes  of  any  claim  for  the  debt.  If  the 
disaffirmance  of  the  contract  of  sale  of  the 
coal  dejjends  as  matter  of  law  ninin  the 
stoppage  of  the  coal  in  transitu,  then  a 
moredilDcult  and  doubtful  i)uestion  is  pre- 
sented. lOvery  Intendment  isin  favorof  the 
findings  of  facts,  and  findings  may  be  im- 
plied if  warranted  by  the  evidence  to  bus- 
tain  a  judgment.  The  evidence  as  to  the 
stoppage  of  the  coal,  as  to  the  possession 
of  the  defendant,  and  the  sale  thereof  by 
him  does  not  present  the  facts  as  clearly 
as  would  be  desirable  upon  tliis  (juestlon. 
If  the  defendant  took  possession  of  the 
coal  in  the  exercise  of  the  right  of  stop- 
page in  transitu,  and  sold  the  same  with- 
out notice  to  Babcock  &  Co.,  and  without 
their  consent,  and  especially  before  the 
<lebt  was  due,  an  inference  of  an  intention 
to  disafhrm  the  contract  of  sale  might  be 
ilrawn,  because  upon  the  theory  that  this 
right  is  to  enforce  a  lien,  as  claimed  by  the 
defendant,  he  must  hold  the  pro|)erty  un- 
til the  expiration  of  the  credit,  and  be  able 
to  deliver  it  upon  paynient  of  the  price, 
and  the  venilee  has  the  right  to  pay  the 
price  and  take  the  property.  According 
to  that  theory  thecredit  is  not  abrogated, 
nor  the  sale,  but  the  vendor  is  permitted 
to  re-take  the  possession  of  the  property, 
and  hold  it  as  security  until  the  price  is 
I)aid.  If  not  jiaid  at  the  time  stiimlated 
the  ven<lor,  in  aiuilogy  to  other  cases  of 
lien,  may  sell  the  property  upon  giving 
notice. 

The  general  rule  upon  the  theory  of  a 
lien  must  be  that  the  vendor  having  ex- 
ercised the  right  of  stoni)age  in  transitu, 
is  restored  to  his  position  l)efore  he  parted 
with  the  i)088ession  of  the  property.  The 
jiroperty  is  vested  in  the  vendee,  and  the 
vendorholds  possession  as  security  for  the 
payment  of  the  purchase-price.  If  there- 
fore the  defendant  sold  the  coal  without 
notice  or  consent,  or  if  with  consent  of  the 
vendees  with  the  understanding  that  the 
sale  was  to  be  deemed  rescinded  Ihelind- 
ing  would  l)e  justilied,  and  the  defendant 
would  have  no  claim  upon  this  note. 

The  coal  was  sohl  to  one  Farrar.  and  a 
bill  of  sale  thereof  made  by  the  defeudjint, 
and  he  received  the  purchase-money.  The 
coal  was  sold  and  the  bill  of  sale  and  pay- 
ment were  not  made  until  .\pril,  after  the 
note  beiami"  due.  and  there  is  some  con- 
llict  in  Ihe  evidence  whether  it  was  made 
with  the  knowledge  or  consent  of  Bab- 
cock &  Co..  or  not. 

As  to   the  legal  queslion,  although  the 


12 


BABCOCK  V.  BONNELL. 


right  of  Btoppnce  in  tratiKitii  Ims  bocn  roc- 
omiizpd  in  Hiislaiid  for  ni-arly  two  liiin- 
tlreil  years,  tiiore  is  great  confusion  in  tlie 
lmol<H  as  to  tiie  origin  of  tlie  rijilit,  and 
tlie  prinoipioH  upon  wiiicli  it  is  founded. 
As  late  as  1S41  Lord  .Abiiider  said,  that 
"although  tlie  tiuestion  of  stoppage  in 
transitu  liatl  lieeii  as  fn><iiiently  raised  as 
any  other  merrantiie  (jiicstion  witliin  tlie 
Inst  bunflred  years.it  tnust  he  owned  that 
tlie  principle  on  which  it  depends  has  never 
lieen  either  settled  or  stated  in  a  satisfac- 
tory manner. 

"  incourt.sof  equity  it  has  been  a  received 
opinion  tliat  it  was  founded  on  some 
priiicipli'(,f  common  law.  Incourtsof  law 
it  is  just  as  much  the  practice  to  call  it  a 
principle  of  e(|uity  which  the  common  law 
has  adopted. " 

Mr.  Parsons,  in  his  work  on  Admiralty, 
Hnyt.  there  are  Ihiee  ways,  in  either  of 
which  it  miKht  he  supposed  that  the  law 
of  stoppage  entered  into  the  law  of  Eng- 
land. One  that  it  is  based  upon  the  civil 
law  by  which,  in  case  of  a  sale,  the  prop- 
erty does  not  pass  to  the  buyer  until  he 
has  possession  of  the  floods.  It  would 
follow  that  the  seller  would  continue  the 
owner  until  they  reach  the  Imyer,  and 
that  by  the  insolvency  of  the  latter  the 
goods  would  remain  the  projierty  of  the 
loriiier.  E.v  the  common  la  w  a  sale  does 
of  itself  pass  the  property  to  the  buyer, 
without  delivery.  Another  way  is  by  im- 
plying; a  right  of  resciudiii};- the  contract 
«if  sale  in  case  of  insolvency,  and  that  the 
act  of  stoppage  was  an  exercise  of  that 
right,  and  a  third  way  is  by  implying  con- 
structive possession  in  the  seller  for  the 
purpose  of  a  lien,  to  be  enforc("d  b.v  the  act 
of  stoppage,  or,  in  other  words,  that  this 
right  is  an  enlargement  of  the  common- 
law  right  of  lien.     I'ars.  Adm.  ■179. 

The  rule  seems  not  to  h,Tve  been  settled 
in  1S42.  Parke,  H..  said  :  "  What  theeffect 
of  stoppage  in  triuisitu  is,  whether  en- 
tirely to  rescind  the  contract,  or  <mly  to 
rei)lnco  the  vendor  in  the  same  position  as 
if  lie  had  not  parted  with  the  possession, 
and  entitle  him  to  hold  the  gr)ods  until 
the  price  be  paid  down,  is  a  point  not  yet 
fully  deci<ied,  and  there  are  ditficulties  at- 
tending each  construction." 

Mr.  Bell,  in  his  ('oinmentaries  on  the 
Law  of  .Scotland,  favors  the  doctrine  of 
rescission.  He  says:  "Although  there 
are  many  ditticulties  either  way.  it  ap- 
pears, on  the  whole,  most  consistent  with 
the  great  lines  of  this  doctrine  of  stoppage 
in  transitu,  that  the  seller's  security  over 
the  goods  sold,  though  peHiaps  in  a  large 
sense  of  the  nature  of  a  lien,  is  given  by 
equit.v  originally  on  the  condition  that 
the  stiler  shall  take  back  the  goods,  as  if 
the  contract  were  ab  initio  recalled." 

There  are  some  other  authorities  favor- 
ing the  same  view,  and  there  are  others 
that  favor  the  theory  of  a  lien.  F'eise  v. 
Wray,  ;i  East. 'J3:  Ex  Parte  Gwynne,  12 
Ves.  Jr.  379;  Lick  barrow  v.  Mason,  6  East, 
21,  note. 

Mr.  Parsons  says  that  the  earlier   Eng- 


lish cases  sustain  the  doctrine  of  a  lien, 
and  intimates  that  later  authorities 
changed  the  ground  to  that  of  rescission, 
but  that  the  latest  returned  to  the  orig- 
inal doctrine.  Pars.  Ad.'B.4SL  Whatever 
uncertainty  there  may  be  as  to  the  rule  in 
England,  the  decisions  in  this  country  are 
quite  preponderating  in  favor  of  tlie 
theory  of  a  lien.  Rowley  v.  Bigelow,  12 
Pick.  307;  23  Am.  Dec.  007;  Stanton  v. 
Eager,  ]()  Pick.  4()7-475;  Arnold  v.  Delano, 
4  Cush.  33,  3!>;  50  Am.  Dec.  7.')4:  Newhall 
V.Vargas,  13  Me.  93;  29  Am.  Dec.  tf*!);  S.  C, 
15  Me.  314;  33  Am.  Dec.  C17,  and  cases 
cited;  Rogers  v.  Thomas,  20  Conn.  .")3; 
.Jordan  v.  James,  5  Ohio,  SS-98;  Harris  v. 
Pratt,  17  N.  Y.  203.  The  elementary 
writers  favor  the  same  view.  2  Kent  Com. 
.541  ;  Pars.  Adm.  4S3;  Pars.  Cont.  .598.  The 
(juestion  has  never  been,  that  I  am  aware, 
definitely  decided  in  this  state.  As  an 
original  question  the  doctrine  of  rescission 
commends  itself  to  my  judgment  as  Ijeing 
more  simple,  and  in  most  cases,  more  just 
to  both  parties  than  the  notion  that  the 
act  of  stoppage  is  the  exercise  of  a -right 
of  lien,  but  in  deference  to  the  prevailing 
current  of  authority,  I  should  hesitate  in 
attempting  to  oppose  it  by  an.v  opinion 
of  my  own,  and  for  that  reason  I  do  not 
deem  it  necessary  to  state  the  grounds 
which  influence  my  judgment. 

It  is  found  as  a,  Fact  that  the  policy  was 
delivered  to  the  defendant  as  collateral 
securit.v  for  the  payment  of  the  first  two 
notes  referred  to  only,  "and  that  the  de- 
fendants never  acquired  or  had  any  inter- 
est in  said  policy  or  in  the  moneys  to  ac- 
crue or  become  paj'aVile  thereon,  except  as 
a  creditor  of  tlie  said  firm,  and  to  the  ex- 
tent of  liis  claim  upon  the  aforesaid  two 
notes  against  the  said  firm."  The  evi- 
dence justified  this  finding.  The  letter  of 
the  defendant  of  March  1,  lS7fi.  shows  that 
he  did  not  then  suppose  that  he  had  any 
legal  indebtedness  against  Babcock  &  Co. 
At  the  time  the  policy  was  issued  the 
cargo  of  coal  for  vvhirrh  the  last  note  was 
given  was  in  possession  of  thedefendant  as 
he  claimed,  and  had  not  tieen  disjiosed  of, 
so  that  the  balance,  even  if  Babcock  &  Co. 
were  liablefor  it, could  not  tlien  beknown, 
and  in  March  after,  in  a  letter  to  the  de- 
fendant, introducing  Mr.  Wheelright,  Bab- 
cock &  Co.  say:  "We  will  avail  ourselves 
of  theopportunity  to  have  him  arrange  for 
the  settlement  of  .your  claim  against  us, 
leaving  in  abeyance  thecargoof  Hepzibah, 
and  the  note  given  in  settlement  of  the 
same. " 

The  testimony  of  the  insurance  agent  is 
to  the  effect  that  tlie  polic.v  was  lielivered 
to  secure  a  fixed  indebtedness,  which 
could  only  refer  to  the  tjrst  two  notes. 
We  are  of  opinion  therefore  that  the  de- 
fendant has  no  lien  upon  this  money  to 
secuie  the  balance  of  the  note  given  for 
that  cargo  of  coal,  even  if  Babcock  &  Co. 
are  liable  for  it. 

It  follows  that  the  judgment  must  he 
atllrmed. 

All  concur,  except  EARL,  J.,  dissenting. 


BAILEY  P.  HUDSON  lUVEll  U.  CO. 


15 


i5Aii.i;v  V.  iirnsox  river  r.  cx). 

(49  N.  Y.  70.) 

Court  of  Appciils-of  New  York.    1872. 

Action  by  Uiiilej-  &  Co.  nguiiiBt  defend- 
ant for  tlie  converHion  of  certain  dry 
(jo'xIh  (lelivonil  to  defendant  and  con- 
si;;iR'd  to  pJaiutiffH. 

Tlinron  K.  Stronf?.  for  appellant. 
.Samuel  Hand,  for  rcHpondents. 

CHURCH,  C.  J.  It  l8  iindiHpiitpd  that 
Allien,  Fiink  i*i  WpKton  delivered  the 
j^oodH  in  (jneHtion  to  the  dofeiidiint,  to  be 
trniis|i<)rted  hy  them  to  the  plaintiffH; 
tliat  they  were  consi«iicii  to  tiie  plaintiffs, 
and  the  packanespropeily  marked  with  the 
name  of  the  plaintiffH' lirni,  and  lliedefend- 
aiit  Rave  a  receipt  for  the  same,  aureeinf; 
to  deliver  the  goodH  nafely  to  the  plain  tiffs 
at  the  city  of  .New  York.  It  is  also  iindis- 
imteii  tha  t  the  plaintiffs  had  ma<le  a  spe- 
eilie  advanee  upon  a  portion  of  the  ^oods, 
anil  the  renininder  were  shipped  in  pnrsu- 
anee  of  an  agreement  Itetween  the  plain- 
tiffs and  Allien,  Krink  &  VVeston,  to  pay 
for  uione.v  borrowed  l>y  the  Intter  of  the 
toriner  a  few  days  previouH,  and  that  in- 
voices of  all  the  goods,  statinc  Hie  eon- 
si^rnnient  and  shipment  hy  thedefeiidant's 
railroad,  had  I'een  forwarded  to  the  plain- 
tiffs hy  mail.  This  xvas  suiistanlially  the 
condition  of  things  on  the  17lh  of  t>(lolier, 
wlu-n  one  of  the  niemlicrs  of  the  lirm  (A 
Allien,  Kriak  &  Weston,  for  his  individual 
benefit,  but  in  the  name  of  his  firm, 
chantreil  the  destination  of  the  goods,  and 
the  defendant  delivered  them  in  pursuance 
of  such  changed  destination  to  another 
person.  The  ijuestiun  is.  whether  the  title 
had  vested  in  the  plaintiffs,  i  think  it 
had.  It  is  clear  that  the  consignors  de- 
livered the  goods  to  the  carrier  for  the 
plaintiffs  in  comjiliance  with  their  con- 
tract to  do  so.  The  parol  contract  %\  as 
thereby  executed,  and  the  title  vested  in 
the  plaintiffs.  The  iilainliffs  occupied  the 
legal  position  of  vendees  after  having 
paid  the  purchase-money  and  received 
the  delivery  of  the  goods.  Hut  it  is  unnec- 
essary, in  order  the  uphold  this  judgment, 
to  maintain  that  the  plaintiffs  occupied 
strictly  the  relation  of  vendees.  The  legal 
rights  of  a  vendee  attach  when  goods 
are  shipped  to  a  commission  niercliant, 
who  has  made  advances  upon  them  in 
liursuanee  of  an  agreement  between  the 
parties.  Such  an  agreement  may  be  either 
inferred  from  the  circuii'stnnccs  or  shown 
bv  express  contract.  Holbniok  v.  Wight, 
L'4  Wend.  Kilt,  a.")  Am.  Dec.  (107  ;  Haille  v. 
Smith.  1  Bos.  &  Pnl.  TM:\.  In  the  latter 
rase.  Kyre,  .1.,  said  :  "From  the  moment 
(ho  goods  were  set  apart  for  this  partic- 
ular purpose,  why  should  we  not  hold  the 
liropcrty  in  them  to  have  changi'd.  it  be- 
ing in  perfect  conforinily  to  the  agrrenient 
ond  such  an  execution  thereof  as  the  jus- 
tice of  tlie  case  reiiiijres."  The  same  priii- 
cii)le  lias  been  repea  tcdiv  adopted.  (Jros- 
venor  v.  I'liillips,  •_'  Ilill,"l47. 

It  must  appear  that  the  delivery  was 
made  with  intent  to  transfer  the  prop- 
erty. I'ntil  this  is  done  the  parol  agree- 
ment is  executory,  the    title  remains  in  the 


consignor,  and  ho  has  the  power  to  trans- 
fer the  property  to  whomsoever  ho 
pleases,  and  render  himself  liable  for  the 
non-performance  of  the  contract.  It  is 
urged  by  the  counsel  for  the  defendant 
that  no  bill  of  lading  was  forwarded  or 
ilelivered  to  the  plaintiffs,  and  that  until 
this  was  done  the  title  remnined  in  the 
consignors.  This  is  undoubtedly  true  in 
many  ('ases:  but  it  is  mainly  important  in 
characterizing  the  act  of  the  sliipiier,  and 
showing  with  what  purpose  and  intent 
the  goods  were  delivered  to  the  carrier. 
If  A.  has  [iroperty.  upon  whirh  he  has  re- 
ceived an  advance  from  H.  upon  an  agree- 
ment that  he  will  ship  it  to  li.  to  pa^  the 
advance  or  to  pay  any  indebtedness,  he 
may  or  may  not  comply  with  his  con- 
tract. He  may  ship  it  to  t'.  or  he  may 
ship  it  to  H.  upon  conditions.  As  owner 
he  can  disposi- of  it  as  he  pleases.  Hut  If 
he  actually  ships  it  to  B.  in  pursuance  of 
his  contract,  the  title  vests  in  P..  uiion  the 
sliip'ment.  The  highest  evidence  that  he 
has  ilone  so  is  Hie  consignnieiu  and  un- 
conditional delivery  to  B.  of  the  bill  of 
lading.  If  the  consignor  procures  an  ad- 
vance upon  the  bill  of  lailing  Iroin  a  thiril 
person,  or  delivers  or  indorses  the  bill  of 
lading  to  a  third  person  for  a  considera- 
tion, it  furnishes  eijually  satisfact(jry  evi- 
dence that  the  property  was  not  delivereil 
to  the  consignee,  for  the  simple  reason 
that  it  was  delivered  to  some  one  else. 
I'ut  I  apprehend  that  if  a  consignor  who 
made  such  an  agreement  retained  in  his 
own  possession  H  du|)licate  of  the  bill  of 
lading,  and  notified  the  consignee  by  let- 
ter that  he  had  shipped  the  property  for 
him  in  pursuance  of  the  agreement,  or  in 
any  other  manner  the  in  tent  ion  thus  to  ship 
it  was  evinced,  the  title  would  pass  as 
effectually,  as  between  them,  as  if  ho  had 
forwarded  the  bill  of  ladinir.  The  ques- 
tion whether  a  subsenuent  indorsee  of  the 
liill  of  lading  for  a  valuable  consideration 
couhi  ac(]uire  any  rights  against  the  con- 
signee is  not  invfdved.  .\s  against  the 
consignor  the  delivery  of  the  property  to 
the  carrier,  witli  intent  to  comply  with 
his  contract,  vests  the  title  in  tlie  con- 
signee. It  is  largelv  a  question  of  inten- 
tion. Jn  .Mitchel  v,  Ede,  11  Adol.  &  El. 
9IK?,  cited  by  the  defendants.  Lord  Deninan 
said:  "The  intention  of  Mackenzie  to 
transfer  the  propert,v  to  the  plaintiff  is 
umiuestionabie,  and  we  think  that  under 
the  circumstauces  he  has  carried  that  in- 
tention into  effect."  .^nd  in  Bank  of 
Kochoster  v.  Jones, 4  N.  V.."i(ll,  .">.">  .Am.  Dec. 
J'.Mi,  this  court  said:  "When  The  bill  of 
lading  has  not  been  delivired  to  the 
consignee,  un<l  there  is  nootherevidence  of 
!Ui  intention  on  the  part  of  the  consignor 
to  consign  the  specilic  iiroiieity  to  him, 
no  lien  will  attach."  In  that  case  the  bill 
of  lailiug  was  not  only  not  sent  to  the  con- 
signee, but  was  transferred  to  the  plain- 
tiffs and  money  borrowed  upon  it,  and 
there  was  no  evidence  of  an  intention  to 
consign  the  tionr  to  the  defendant  except 
upon  thecondition  of  paying  the  mone.vso 
borrowed.  It  slinuld  be  observed  also 
that  in  that  case  there  was  no  agreement 
to  consign  the  property  to  the  defeinlant 
as  security,  or  in  payment  of  the  indebt- 
edness due  hiiu  from  the  consignor.     Such 


16 


BAILKY  V.  IlUnSOX  RIVER  R.  CO. 


an  nKreeiiicnt,  oitlior  ox|)i-chh  (ir  iiii|ili?(], 
in  iinportiiiit.  iilthoiiicli  not  i-oiiclusive,  in 
showitm  tlio  intent  with  which  the  m-t 
WHS  iliiiif.  in  III  is  cttsc  tliiMi-  ^vns  no 
ntlicr  bill  of  lailiiifi  tlmn  the  reci'i|)l  i)r()- 
(Inceil  ill  ovickMu-e,  nnd  no  duplicate  \vnn 
taken;  but  the  intention  of  Aldeii,  KrinU 
&  Weston  to  transfer  this  specilie  property 
to  the  i)laiiitiff8,  to  Reapplied  upon  their 
indelitediu'SH,  eontlusively  appears  liy  the 
undisputed  evidence.  1.  I!y  the  agree- 
ment the  day  prior  to  the  shipment,  l!. 
Uy  forwarding  invoices  of  the  shipment 
t<")  the  plaintiffs.  :!.  l$y  inaUint;;  the  sliip- 
ent  iiTiconditiotially.  4.  I!y  retaining  the 
receipt  given  by  the  defendant, and  neither 
making  or  Dtteinptini:  to  make  any  use 
of  it. 

Thi'se  nets  were  so  nnequivopnl  of  an  in- 
teiilidii  to  transfer  the  property  to  the 
[ilaiiililfs  that  there  remains  no  room  for 
doubt.  'I'he  moment  these  acts  were 
done,  the  title  vested  in  the  pl.-iintiffs,  nnd 
the  eoiisifinors  were  powerless  to  inter- 
fere with  the  property. 

The  recent  ease  of  Cayuga  County  Na- 
tional liiink  v.  Daniels,  47  N.  Y.  tV-'A.  was 
decided  against  the  cousignees  upon  the 
distinction  above  referred  to.  It  was  held 
in  that  case  that  the  coiisignors  did  not 
deliver  the  property  to  the  carrier  with 
tlie  intention  to  vest  the  title  in  the  tle- 
fendants,  except  upon  condition  of  pay- 
ing a  draft  discounted  by  the  plaintiffs, 
and  that  the  bill  of  lading  was  delivered 
upon  that  conrlition,  and  that  on  the  de- 
fendants' refusal  to  comply  with  the  con- 
<lition,  tliey  HC(|uired  no  right  or  title  to 
the  property,  and  that  the  case  tiierefore 
caiiK!  within  tin;  principle  of  Hank  of 
Kochester  v  .lones,  snpra.  Here  the  in- 
tention to  vest  the  title  is  clear  and  plain, 
it  is  tirged  that  the  words  "on  our  ac. 
count"  in  the  invoices  evinced  an  inten- 
tion not  to  vest  the  title  in  the  plaintiffs. 
They  can  have  no  such  effect  in  this  case, 
even  if,  standing  alone  and  nne.viiUiined, 
they  might  have.  A  bill  of  lading  for 
which,  as  between  the  parties,  the  invoices 
were  a  substitute,  can  always  be  ex- 
plained by  parol,  it  may  be  shown  by 
parol  to  have  been  intended  as  evidence 
of  an  absolute  sale,  a  trust,  a  mortgage, 
a  pledge,  a  lien,  or  a  mere  agency.  2  Hill, 
15i;  4  N.  Y.  501,  and  cases  cited."  The  ac- 


tual agreement  and  transaction  will  pre- 
vail, and  it  was  proveil  ny  two  of  the 
members  of  the  firm,  an<l  uncontradicted, 
that  the  goods  were  4n  fact  shipped  in 
pursuance  of  the  agreement.  liesides, 
these  words  are  not  ne(;cssai'ily  inconsist- 
ent with  the  agreement.  The  goods  were 
not  purchased  alisolntely  liy  the  plaintiffs 
at  a  stiecified  price,  but  were  to  l)e  sold 
and  the  avails  applied.  The  relation  of 
the  plaintiffs  was  more  nearly  that  of  trus- 
tee, having  the  title,  and  bonnd  to  dispose 
(»f  the  jtroiierty  and  apply  the  proceeds  in 
a  particular  manner,  and  the  consignors 
Vt'ere  the  cestuis  que  trust,  having  the 
legal  right  to  enforce  the  terms  of  the 
agreement  for  their  benefit.  In  this  sense 
the  property  was  sliippeil  on  thoir  account, 
and  the  agreement  is  consistent  with  the 
meaning  of  those  words.  The  statute 
of  frauds  has  no  npi)lication.  1.  There 
was  no  sale.  2.  If  there  was  the  consid- 
eration was  paid.  3.  The  property  was 
specified  when  the  agreement  was  made 
as  being  that  which  had  been  anil  was 
then  being  shipped,  and  the  idainiiffs 
agreed  to  accept  that  particular  i)rop- 
erly,  and  the  subsequent  delivery  to  the 
carrier  agreed  upon  was  in  legal  effect 
a  deliverv  to  the  plaintiffs.  Cross  v. 
O'Uonnell.  44  N.  Y.  661,  4  Am.  Rep.  721; 
.Stafford  v.  Webb,  Lalor  Snpp.  217. 

The  defendant  is  liable  for  a  conversion 
of  the  property.  It  had  receipted  the 
l)roi)erty  and  agreed  to  transport  safely 
and  deliver  it  to  the  plaintiffs.  Instead 
of  complying  with  its  contract,  it  deliv- 
ered the  property  to  another  person  by  the 
direction  of  one  who  had  no  more  legal 
authority  over  the  property  than  a 
stranger,  without  the  return  even  of  its 
receipt.  The  plaintiffs  haci  vested  rights 
which  the  defendant  was  bound  to  re- 
spect, and  with  a  knowledge  of  which  it 
was  legally  chargeable.  Willetts  v  Sun 
.Mut,  Ins.  (;o.,  4.5  N.  T.  49;  Hawkins  v. 
Hoffman,  6  Hill,  ,586;  Holbrook  v.  Wight, 
24  Wend.  169;  Story  Bailm.  414;  Royce 
v.  Brockway,  31  N.  V.  490.  Ii  was 
its  duty  to  deliver  the  property  to 
the  real  owner.  McEntee  v.  New  Jersey 
Steamboat  Co.,  4.5  N.  Y.  34. 

Judgment  affirmed,  with  costs. 

All  concur. 

Judgment  aflBrmed. 


BALDEY  0.  PARKER. 


19 


BALDEY  et  al.  v.  PARKER. 

(2  Bani.  &  C.  .'{".) 

King's  Bi'iicli.     Juiip  5,  182.'!. 

AHSunipHit  (or  Roods  huIiI  ami  delivered. 
Pleu,  (leneral  iwHiie.  At  the  triHl  Iji'fore 
Ahlxitt,  «'.  .).,at  tlie  LoikIoii  sittiriKH  uUer 
Trinity  term,  IS22,  tlie  t'ollowinK  uppeiired 
to  be  tlie  ffictH  of  tiie  fiine:  Tlic  pliiintiffd 
are  linen-draperH,  aiKi  tlie  dclendant  camo 
to  tlieir  hIi(i|>  anil  tiar^^ained  for  variouM 
articleM.  A  separate  price  waH  agreed  np- 
OM  for  eacli,  and  no  one  article  was  of  tlie 
vniiK?  of  £10.  Some  were  mcaRured  in  his 
prewence;  Home  lie  tuarlied  with  a  pencil; 
others  he  assiHtcd  in  cutting  from  a  larger 
bulk.  He  then  desired  an  account  of  the 
whole  to  be  sent  to  his  house,  and  went 
away.  A  bill  of  parcels  was  accorJinjily 
made  out  and  sent  by  a  shopman.  The 
amount  of  the  noods  was  £70.  The  de- 
fendant looked  at  the  account,  and  asked 
what  discount  would  bo  allowed  for  ready 
money,  and  was  told  £."1  per  cent.;  he  re- 
plied that  it  was  too  little,  and  reqiiosted 
to  see  the  person  01  whom  lie  boii.ilit  llio 
goods  (Ualdcy),  as  he  could  bargain  with 
him  respectinn  the  discount,  and  said  that 
he  ouf^lit  to  be  illowed  £J0  percent.  The 
Koo<ls  were  afterwards  sent  to  the  defend- 
ant's h<iuse,  and  he  refused  to  accept 
tiiein.  The  lord  chief  justice  tho'isht  that 
this  was  a  contract  for  jjoods  of  more 
than  the  value  of  tlO  within  the  meaning 
of  the  ITtli  section  of  tht'statutc  of  frauds, 
and  not  within  any  of  the  exceptions  there 
mentioned,  and  directed  a  nonsuit;  but 
gave  the  plaintiffs  leave  to  move  to  enter 
«  verdict  in  their  favor  for  £70.  A  rule 
haviny;  accordingly  been  obtained  for  that 
purpose, 

Scarlett  and  E.  Lawes  now  shewed 
cause.    Denman  and  Piatt,  contra. 

ABBOTT,  C.  J.  We  have  given  our 
opinion  upon  more  than  one  occasion 
that  the  2i)  Car.  2,  c.  ^,  is  a  highly  beneficial 
and  remedial  statute.  We  are  therefore 
bound  so  tocoiistrueit  as  to  furthertheob- 
ject  and  intention  of  the  legislature,  which 
was  the  prevention  of  fraud.  It  appeared 
from  the  facts  of  this  case  that  the  defend- 
ant went  into  the  plaintiff's  shop  and  bar- 
gained for  various  articles.  Some  were 
severed  from  a  larger  bulk,  and  some  he 
marked  in  order  to  s.-itisfy  liimself  that 
the  same  were  afterwards  sent  home  to 
him.  The  first  question  is  whether  this 
was  one  entire  contract  for  the  sale  of  all 
the  goods.  By  holding  that  it  was  not, 
we  should  entirely  defeat  the  oliject  of  the 
statute.  For  then  persons  iuteiiding  to 
buy  many  articles  at  one  time, amounting 
in  the  whole  to  a  largo  price,  might  with- 
draw the  case  from  the  oiieration  of  the 
statute  by  making  a  separate  bargain  for 
each  articlo.  Looking  at  the  whole  trans- 
action, I  am  of  opinion  that  the  parties 
must  be  considere<l  to  have  made  one  en- 
tire contract  for  the  whole  ol  the  articles. 
The  plaintiffs  therefore  cannot  maintain 
this  action  unless  they  can  shew  that  the 
case  is  within  the  exception  of  the  29  Car. 
2,  c.  3,  §  17.  Now  the  words  of  that  e.\cep- 
tloD  are  peculiar,  "except  the  buyer  sbull 


accept  part  of  the  goods  so  sold,  and  acto- 
ally  receive  the  same.  "  It  would  be  diffi- 
cult to  find  words  more  di-.tiiictly  denot- 
ing an  actual  transfer  of  the  article  from 
the  seller, and  an  actual  taking  possession 
of  it  liy  the  buyer.  If  we  held  that  such  a 
transfer  and  acceptance  were  complete  in 
this  case,  it  would  seem  to  follow  as  a 
necessary  conseciiience  that  the  vendee 
might  maintain  trover  without  paying 
tor  the  goods,  and  leave  the  vendor  to 
this  action  for  the  price.  Such  a  doctrine 
would  be  highly  injurious  to  trade,  and 
it  is  satisfactory  to  find  tlint  the  law  war- 
rants us  in  saying  that  this  transaction 
had  no  such  effect. 

BAYLEY,  .1.  The  buyer  cannot  be  con- 
sidered to  have  actually  received  tlie 
goods,  when  they  have  retrained  from 
first  to  last  in  the  possession  of  the  seller. 
The  plaintiffs  are  not  assisted  by  the  ex- 
ception in  the  17th  section  of  the  statute 
of  frauds.  Then  the  (luestion  is,  whether 
there  was  a  separate  contract  for  each 
article.  The  2!)  Car.  2,  c.  :i.  was  passed  to 
guard  against  frau<Is  and  pcijuries;  and 
it  must  be  collected  from  the  17th  section 
that  the  legislature  thought  that  a  con- 
tract to  the  extent  of  £10  might  be  surti- 
cient  to  induce  the  parlies  to  it  to  bring 
tainted  evidence  into  court.  Now  it  is 
conceded  lieri'  that  on  the  same  day,  and 
indeed  at  the  same  meeting,  the  defendant 
contracted  with  the  plaintiffs  for  the  pur- 
chase of  goods  to  u  much  greater  amount 
than  £10.  Mad  the  entire  value  been  set 
upon  the  whole  gooils  t(>gethcr,  there  can- 
not lie  a  doubt  of  its  being  a  contract  for 
a  greater  amount  than  £10  within  the 
nth  section  ol  tlie  statute;  and  1  think 
that  the  circumstance  of  tt  separate  price 
being  fixed  upon  each  article  makes  no 
such  difference  as  will  take  the  case  out  of 
the  operation  of  that  law.  It  has  liecn 
askeil  what  interval  of  time  must  elapse 
betv(-en  the  purchase  of  different  articles 
in  order  to  make  the  contract  separate; 
and  the  case  has  been  put  of  a  purchaser 
leaving  a  shop  aftermakiiig  one  purchase, 
and  returning  after  an  interval  of  live  or 
ten  minutes  and  making  nnotlier.  if  the 
return  to  the  slio])  were  soon  enough  to 
warrant  a  supposition  that  the  whole 
was  intended  to  be  one  transaction,  I 
should  hold  it  one  entire  contract  within 
the  meaning  of  the  statute.  I  am  there- 
fore of  opinion  that  this  rule  must  be  ilis- 
charged. 

HOLItOYD,  J.  I  am  of  the  same  opin- 
ion. The  intention  of  the  statute  was 
that  certain  reciuisites  sliouhl  be  observed 
in  all  contracts  for  the  sale  of  goods  for 
the  price  of  £10  and  upwards.  This  was 
all  one  transaction  though  composed  of 
different  parts.  At  first  it  appears  to 
have  been  a  contract  for  goods  of  less 
value  than    £10,  but   in  the  course   of   the 

dealing  it  grew  to  a  contract  torn  much 
larger  amount.  .At  last  therefore  it  was 
one  entire  contract  within  the  meaning 
and  iiiiscliief  of  the  statute  of  frauds,  it 
being  the  Intention  of  that  statute  that 
where   the  contrac-t,   either   at    the  com- 

I  menccment  or  at  the  conclusion,  amount- 
ed to  orexceeded  the  valueul  £10,  it  aliould 


20 


BALDEY  V.  PARKEH. 


not  bind  unless  the  requisitas  there  men- 
tioned were  complied  with.  The  dnnRer 
of  false  testimony  is  quite  as  great  where 
the  bargain  is  ultimately  of  the  value  of 
£10,  as  if  it  had  lieen  originally  of  that 
amount.  It  must  therefore  be  considered 
as  one  contract  within  the  meaning  of  the 
act.  With  respect  to  the  exception  in  the 
17th  section,  it  may  perhaps  have  been  the 
Intention  of  tlie  legislature  to  guard 
against  mistake  where  the  parties  mean 
honestly  as  well  as  against  wilful  fraud  ; 
auJ  the  things  required  to  be  done  wrill 
have  the  effect  of  answering  both  those 
ends.  The  words  are,  "except  the  buyer 
shall  accept  part  of  tno  goods  so  sold  and 
actually  receive  the  same,  or  give  some- 
Thing  in  earnest  to  bind  the  bargain  or  in 
|)art  of  payment,  or  that  some  note  or 
memorandum  in  writing  of  the  said  bar- 
gain be  made  and  signed  by  the  parties  to 
bo  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized." 
Each  of  those  particulars  either  shews  the 
bargain  to  be  complete,  or  still  further 
that  it  has  been  actually  in  part  per- 
formed. The  change  of  possession  does 
not  in  ordinary  cases  take  placa  until  the 
completion  of  the  bargain;  part  payment 
also  shews  the  completion  of  it;  and  in 
like  manner  a  note  or  memorandum  in 
writing  signed  by  the  parties  plainly 
proves  that  they  understood  the  terms  up- 
on which  they  were  dealing,  and  meant 
finally  to  bind  themselves  by  the  contract 
therein  stated.  In  the  present  case  there 
is  nothing  to  shew  that  some  further  ar- 
rangement might  not  ren)uin  unsettled 
after  the  price  for  each  article  had  been 
agreed  upon.    There  was  neither  note  nor 


memorandum  in  writing;  no  part  of  the 
price  was  paid,  nor  was  there  any  such 
changeof  possession  asthnt  contemplated 
by  the  statute.  Upon  a  sale  of  specific 
goods  for  a  specific  price,  by  parting  with 
the  possession  the  seller  parts  with  his 
lien.  The  statute  contemplates  such  a 
parting  with  the  possession;  and  there- 
fore as  long  as  the  seller  preserves  his  con- 
trol over  the  goods  so  as  to  retain  his  lien, 
he  prevents  the  vendee  from  accepting  and 
receiving  them  as  his  own  within  the 
meaning  of  the  statute. 

BEST,  J.  It  was  formerly  considered 
that  a  delivery  of  the  goods  by  the  seller 
%vas  sufficient  to  take  a  case  out  of  the 
17  th  section  of  the  statute  of  frauds;  but  it 
is  now  clearly  settled  that  there  must  be 
an  acceptance  by  the  buyer  as  well  as  a 
delivery  by  the  seller.  Tlie  statute  enacts 
that,  where  the  bargain  is  for  something 
to  the  value  of  £10,  itshall  not  bind,  unless 
something  unequivocal  has  been  done  to 
shew  that  the  contract  iscomplete.  Noth- 
ing of  that  kind  having  been  done  in  this 
case,  if  the  dealing  is  to  beconsideredasone 
entire  transaction  it  is  clear  that  the  plain- 
tiffs cannot  recover:  whatever  tliis  might 
have  been  at  the  beginning,  it  was  clearly 
at  the  close  one  bargain  for  the  whole  of 
the  articles.  The  account  was  all  made 
out  together,  and  the  conversation  about 
discount  was  with  reference  to  the  whole 
account.  It  is  therefore  very  distinguish- 
able from  Emmerson  v.  Ileelis,  1!  Taunt. 
SS,  where  a  complete  bargain  was  made 
ns  to  each  article  as  soon  as  theauctioneer 
had  signed  his  name  to  it. 

Rule  discharged. 


BALDWIN  V.  WILLIAMS. 


23 


BALDWIN  v.   WaLLIAMS. 

(3  Mete.  3G5.) 

Supreme  Judicial  Court  of  Massachusetts.    Nov. 
Term,  1841. 

Thia  case  was  tried  before  Wilde,  J., 
who  made  the  following  report  of  it: — 

This  was  an  action  of  asHunipsit,  and 
the  (It'claration  set  fortli  an  agreement  of 
the  plaintiff  that  he  would  barsain,  sell, 
asHJKn,  transfer,  and  set  over  to  the  de- 
fendant, and  indorse  without  recourse  to 
him,  the  plaintiff,  in  any  event,  two  notes 
of  hand  by  him  held,  sif^necl  hy  S.  J.  Gard- 
ner; one  dated  April  24th,  ls35,  for  the 
I)ayment  of  $l,.'j(»0;  the  other  dated  May 
.'jth,  is;i(!,  for  the  ()iiymeiit  of  $r>W);  and 
both  payable  to  the  pbiintiff  or  order  on 
the  :id  of  April,  lM:Ji),  with  interest  from 
llu'ir  dates.  The  declaration  set  forth  an 
agreement  by  the  defendant,  in  considera- 
tion of  the  plaintiff's  agreement  aforesaid, 
and  in  [layment  for  said  liardner's  said 
notes,  to  pay  the  plaintiff  $1,0()()  in  cash, 
and  to  dive  the  plaintiff  a  post  note,  made 
by  the  Lafayette  liank.lor  J?1,0U0,  and  also 
a  note  signed  by  ,(.  li.  Kussell  &  Co.  and 
indorsed  by  D.  \V.  Williams  for  $1,0(10. 

The  i)lainliff  at  the  trial  proved  an  oral 
aRreement  with  the  defendant  as  set  forth 
in  the  declaration,  and  nn  offer  by  tiie 
l>laintiff  to  comply  with  his  part  of  said 
agreement,  and  a  tender  of  said  Gardner's 
said  notes,  indorsed  by  tlie  plaintiff  with- 
out recourse  to  him  in  any  event,  and  a 
demand  uixin  the  defendant  to  fulfil  his 
part  of  said  agreement,  and  the  refusal  of 
the  defendant  to  do  HO.  But  the  plaintiff 
introduced  no  evidence  tending  to  show 
that  any  thing  iiassed  between  the  i)ar- 
ties  at  the  time  of  making  the  said  agree- 
ment, or  was  given  in  earnest  to  bind  the 
bargain. 

The  judge  advised  a  nonsuit  upon  this 
evidence,  because  the  contract  was  not  In 
writing  nor  proved  by  any  note  or  mem- 
orandum in  writing  signed  by  the  defend- 
ant or  his  agent,  and  nothing  was  received 
by  the  purchaser,  nor  uiven  in  earnest  to 
bind  the  bargain.  .\  nonsuit  was  accord- 
ingly entereil,  which  is  to  stand  if  in  the 
opinion  of  the  wliole  court  the  agreement 
Bet  forth  in  thedeclaration  falls  within  the 
statute  of  frauds  (Rev.  Sts.,c.  74,  §  4); 
otherwise,  the  nonsuit  to  betaken  off, and 
a  new  trial  granted. 

Clarke,  for  plaintiff.  S.  D.  Parker,  for 
defendant. 


WILDK,  .1.  Thia  action  is  founded  on 
an  oral  contract,  and  the  question  is, 
whether  it  is  a  contract  of  sale  within  the 
statute  of  frauds. 

The  plaintiff's  counsel  contends  in  the 
first  place  that  the  contract  is  not  a  con- 
tract for  the  sale  of  the  notes  mentioned 
in  the  declaration,  but  a  mere  agreement 
for  the  exchange  of  them  ;  and  in  the  sec- 
ond place  that  if  the  agreement  is  to  be 
considered  as  a  contract  of  sale,  yet  it  is 
not  a  contract  within  that  statute. 

As  to  the  first  point,  the  defendant's 
counsel  contends  that  an  agreement  toe.x- 
cliauge  notes  is  a  mutual  contract  of  sale. 


But  it  is  not  neccBsary  to  decide  this  qaes- 
tion,  for  the  agreement  of  the  defendant, 
as  alleged  In  the  declaraticjn,  was  to  pay 
for  the  plaintiff's  two  notes  tti.OOO  in  cash, 
in  addition  to  two  other  notes:  and  that 
this  was  a  contract  of  sale  is,  we  think, 
very  clear. 

The  other  question  is  more  <Ioubtful. 
But  the  better  o[)inlon  seems  tr>  us  to  be, 
that  this  is  a  contract  within  the  true 
meaning  of  the  statute  of  frauds.  It  is 
certainly  within  the  tnischief  thereby  in- 
tended to  be  prevented  ;  and  the  words  of 
the  statute,  "goods"  and  "merchandise," 
are  sufficiently  comprehensive  to  include 
promissory  notes  of  hantl.  The  word 
"goods"  is  a  word  of  large  signification: 
and  so  is  the  word  "merchandise."  ■*  Merx 
est  quic(|uid  vendi  i)otcst." 

In  Tis<lale  v.  Harris,  20  Pick.  9,  it  was 
decided  that  a  contract  for  the-  sale  of 
shares  in  a  manufacturing  corporation  is 
a  contract  for  the  sale  of  goods  or  mer- 
chandise within  the  statute;  and  the  rea- 
sons on  which  that  decision  was  founded 
seen)  fully  to  authorize  a  similar  decision 
as  to  promissory  notes  of  hand.  A  differ- 
ent decision  has  recently  been  made  in 
England  in  Humble  v.  Mitchell.  3  Perry  & 
Davison,  141 ;  s.  c.  11  Adolph.  &  Ellis,  207. 
In  that  case  it  was  decided  that  a  con- 
tract for  the  sule  of  sh.-ires  in  a  joint-stock 
banking  company  was  not  within  the 
statute  of  frauds.  But  it  seems  to  ns  that 
the  reasoning  in  the  case  of  Tisdale  v. 
Harris  is  very  cogent  and  satisfactory; 
and  it  is  supportetl  by  several  other  cases. 
In  Mills  v.  Gore,  20  Pick.  I'.S.it  was  decided 
that  a  bill  in  equity  might  be  maintained 
to  compel  the  redelivery  of  a  deed  and  a 
promissory  note  of  hand, on  the  provision 
in  the  Itev.  Sts.  c.  SI,  §  s,  which  gives  the 
court  jurisdiction  in  all  suits  to  compel 
the  redelivery  of  any  goods  or  chattels 
whatsoever,  taken  and  detained  from  the 
owner  thereof,  and  secreted  or  withheld, 
so  that  the  same  cannot  be  replevied. 
And  the  same  point  was  decided  in  Clapp 
V.  Shephard,  2.'!  Pick.  22S.  In  a  former 
statute  (St.  1S2:J,  c.  140),  there  was  a  simi- 
lar provision  which  extended  expressly  to 
"any  goods  or  chattels,  deed,  bond,  note, 
bill,  specialty,  writing,  or  other  personal 
properti'."  And  the  learned  commission- 
ers, in  a  note  on  the  Hev.  Sts.c.  si,  §  S.say 
that  the  words  "'goods  or  chattels' are 
supposed  to  comprehend  the  several  par- 
ticulars immediately  following  them  in  St. 
1823,  c.  140,  as  well  as  many  others  that 
are  not  mentioned. " 

The  word  "chattels"  is  not  contained 
in  the  provision  of  the  statute  of  frauds; 
but  personal  chattels  are  moval)le  guods, 
and  BO  far  as  these  words  may  relate  to 
the  question  under  consideration  they 
seem  to  have  the  same  meaning.  But 
however  this  may  be,  we  think  the  pres- 
ent case  cannot  be  distinguished  in  |)rinci- 
|)le  from  Tisdale  V.  Harris;  and  upon  the 
authority  of  that  case,  taking  into  consid- 
eration again  the  reasons  and  ()rinciple8 
on  which  it  was  decided,  we  are  of  opinion 
that  the  contract  in  question  Is  within 
the  statute  of  frauds,  and  consequently 
that  the  motion  to  set  aside  tlie  nonsuit 
must  be  overruled. 


BALLENTINE  v.  KOBINSON. 


25 


BALLKNTINE  et  al.  v.  ROBINSON  et  al. 

(4C  Pa.  St.  177.) 

Supreme  Court  of  Pennsylvania.    Nov.  2,  1863. 

AasumpHit  by  William  C.  Roliintion  and 
others,  doing  l)u.sineH»  as  KohinHon,  Douj;- 
las  &  .Millurs,  a^'iiiist  Nutlianiel  liulleiitinu 
and  (Jeor^^e  Hutcliliison,  partners  tra<lln(; 
us  HutdiiiiMon  &  Ballentine.  Jud^iiifut 
for  [iluintiffH,  and  defendants  bring  error. 
Affirmed. 

Robb  &  MacConnell,  for  plaintiffs  in  er- 
ror. Humiltun  &  Acbeson,  for  defendants 
in  error. 

STRONG,  .1.— The  parties  entered  Into 
a  contract  by  which  it  was  stipulated 
that  the  plaintiffs  should  furnish  the  ma- 
terials and  construct  for  the  defendants 
a  steam-engine  of  a  described  pattern,  for 
which  the  defendants  engaged  to  pay 
the  sum  of  $.j.'!5  on  its  comi'letioii. 
The  engine  having  been  linished  pursuant 
to  the  contract,  and  notice  of  its  com- 
pletion having  been  given  to  the  defend- 
ants, they  refused  to  pay  the  stipulated 
price.  Hence  this  suit,  In  wliicli  the  only 
question  raised  is,  what  is  the  correct 
measure  of  damages  for  such  a  breach  of 
contract.  That  the  plaintiffs  had  done 
all  they  were  bound  to  do,  that  they  had 
the  engine  ready  for  actual  delivery,  on 
payment  of  the  sum  agreed  to  be  paid  by 
the  defendants,  and  that  the  defendants 
were  under  obligation  to  take  It  away 
and  make  payment,  are  established  facts. 
It  is  now  contended  that  the  measure  of 
damages  recoverable  is  the  difference  be- 
tween the  price  contracted  to  lie  paid  for 
the  engine  and  the  market  price  at  the 
time  the  contract  was  broken. 

Where  a  sale  of  goods  has  been  made 
and  they  have  been  delivereil,  it  is  plain 
the  measure  of  damages  for  nonpayment 
is  tlie  stipulated  price.  About  that  there 
is  no  dilBculty.  Doubts,  however,  have 
been  entertained,  where  goods  have  been 
sold  and  not  delivered  in  consequence  of 
the  refusal  of  the  buyer  to  complete  the 
contract.  It  has  somelimeM  been  said  the 
standard  for  measurement  is  the  excess  of 
the  contract  price  over  the  market  value. 
Yet  where  the  subject  of  the  sale  is  a  spe- 
cltio  article,  where  the  contract  has  been 
so  fur  completed  as  to  pass  the  property  in 
the  article  to  the  vendee,  the  possession 
being  retained  only  because  the  price  is 
not  paid,  there  seems  to  be  no  good  rea- 
son why  the  vendor  should  not  be  permit- 
ted to  recover  the  agreed  value,  lie  has 
fully  complied  with  all  that  he  was  under 
obligation  to  do.  He  has  parted  with  his 
property,  and  given  the  full  e(iuivalent  for 
the  sti()ulated  price.  His  right  to  the 
property  having  passed  to  the  vendee, 
his  right  to  the  price  would  appear  to  be 
consummate.  It  is  true,  if  the  sale  be  for 
cash,  the   vendor   may  treat  the  goods  as 


his  own  and  sell  them,  on  failure '>f  the 
vendee  to  pay,  in  which  case  he  can  claim 
only  the  difference  between  the  price  lor 
which  he  has  sold,  and  the  price  prom- 
ised to  be  paid  by  the  first  vendee.  That 
difference  completes  his  compensation. 
But  the  resale  Is  only  a  mode  of  giving 
effect  to  his  lien.  It  is  not  a  rescission  of 
the  contract,  so  as  to  revest  the  property 
'  in  the  article  sold  in  him,  for  if  it  were,  he 
could  not  sue  for  the  deficiency.  The  law 
does  not  compel  him  to  resume  the  owner- 
ship of  the  property,  and,  of  course,  it 
ought  not  to  take  away  his  right  to  the 
price. 

The  present  is  not  strictly  the  case  of  a 
sale.  The  plaintiffs  agreed  to  build  the 
engine  according  to  directions  of  the  de- 
fendants, and  to  furnish  the  necessary 
materials  for  it.  When  it  was  completed 
the  defendants  had  notice,  and  were 
Ijound  to  take  it  awaj'  and  pay  the  con- 
tract price ;  but  instcarl  of  taking  It  and 
paying  the  price,  they  requested  the  plain- 
tiffs to  sell  it.  In  such  a  case  the  right  of 
proi>erty  was  clearly  in  them  on  notice  of 
the  completion  of  tlie  article.  The  ma- 
terials of  whicli  it  was  composed  may 
fairly  be  said  t<j  have  been  delivered  when 
they  were  put  into  the  engine.  The  ile- 
fendantsalone  were  in  default.  They  ought 
not  to  be  permitted  to  rom|)Cl  the  plain- 
tiffs to  purchase  from  them.  Retaining  a 
lien  on  the  engine  for  the  price,  the  plain- 
tiffs were  at  liberty  to  sell  It  anew,  or,  at 
their  election,  to  obtain  full  compensa- 
tion from  the  defendants  for  their  breach 
of  contract.  There  can  bo  no  just  reason 
why  they  should  be  compelled  to  accept 
the  engine  as  part  payment,  wliich  tliey 
virtually  must  do  If  they  can  recover  only 
the  difference  between  its  market  value 
and  the  sum  the  defendants  agreed  to 
pay.  And  why  should  they,  without  any 
default  of  their  own,  be  suljjected  to  the 
risk  and  trouble  of  a  resale,  tor  the  de- 
fendants' benefit?  Besides,  it  may  well 
be,  that  the  article  manufactured  accord- 
ing to  order  may  have  no  market  value, 
and  would  be  worthless  on  the  manufac- 
turers' hands.  This  engine  was  not  made 
tor  sale  in  the  market.  It  was  built  ac- 
cording to  instructions  given  by  the  de- 
fendants, and,  it  may  lie  presumed,  for 
their  peciliar  use.  The  just  rule,  there- 
fore, plainly  Is,  in  such  a  case,  where  the 
manufacturer  ut  an  article  ordered,  has 
completed  it,  and  given  notice  of  its  com- 
pletion, that  he  should  be  allowed  to  sue 
for  the  value,  and  recover,  as  its  measure, 
the  contract  price.  .\nd  such  is  the  doc- 
trine laid  down  in  the  better  decisions. 
Thus  it  was  decided  In  Bement  v.  Smith, 
],")  Wendell,  49:1,  where  the  cases  are  re- 
viewed, and  the  rule  is  thus  stated  in  2 
Parsons  on  Contracts  483,  und  in  Sedg- 
wick on  Damages  HSl. 

The  instruction  given  In  the  court  be- 
low was  therefore  richt. 

The  judgment  Is  affirmed. 


BARKER  V.  DINSMORE. 


27 


BARKER  et  al.  v.  DINS.MOUE. 

(72  Pa.  St.  427.) 

Supreme  Court  of  Pennsylvania.     May  17,  1S7-. 

Replevin  by  John  Diiisnnire  auainst  Wil- 
liam Barker,  Jr.,  and  JeHne  b.  Kil^ore, 
trading  as  VVilliam  Ranker  &  Co.  for  cer- 
tain HuckH  of  wool.  Judument  lor  plain- 
tiff.and  defendantH  brinR  error.    Allliuied. 

A  man,  represent  ins  hiniHelf  to  be  con- 
nected with  defendant  (irni,  bouKht  from 
plaintiff,  at  the  liitter's  farm,  the  wool  in 
queHtion.and  K'tve  liira  ameniorandum  to 
that  effect  on  a  hiiMineHH  card  of  defend- 
ants, tellinf;  him  to  come  to  defendants' 
office  in  the  city  to  procure  bin  pay.  'i'he 
wool  was  shipper)  by  |)Inintiff  to  defend- 
ants, but  on  its  arrival  in  the  city  posses- 
sion of  it  was  procured  by  the  person  who 
had  arrani;i'd  ttie  sale,  and  who  in  fact 
had  no  connection  with  defendants,  and 
by  him  sold  to  defenilants,  they  paying 
liini  what  they  considered  the  wool  was 
worth. 

Before  THO.MI^SON,  C.  J.,  READ.  AG- 
NEVV,  SHARSVVOOU.  and  WILLIAMS, 
.IJ. 

A.  M.  Brown  and  T.  .M.  Marshall,  for 
I'laiiitiffs  in  error.  M.  W.  Acheson  ( with 
•A  ho  111  was  W.  B.  Rodgers),  for  defendant 
III  error. 

WILLIAMS,  J.— The  verdict  of  the  jury 
'  stabliKhes  the  fact  that  tlie  t'Inintiff  be- 
i>w  did  not  sell  the  wool  to  the  defend- 
Mits'  vendor,  as  an  individual,  en  his  own 
II  sponsibillty,  but  as  a  member  or  agent 
of  the  defendants'  tirni,  and  upon  their 
I  redit.  Nor  was  the  wool  deMvereil  to 
liim  by  the  plaintiff.  It  was  delivei'ed  to 
the  railroad  eoiiipan.v,  to  be  carried  to 
Pittsburg,  and  there  delivered  to  defend- 
ants, to  whom  it  waB  consigned  by  the 
plaintiff.  Under  the  contract  of  shipment 
the  company  had  no  right  to  deliver  the 
wool  to  any  person  except  the  consignees; 
and  their  delivery  of  it  to  tlie  defendants' 


vendor  vested  in  him  no  property  or  riirht 
of  poHsessionas  against  the  plaintiff.  The 
principle  which  underlies  this  case,  nnil  by 
which  the  rights  ol  the  parties  arc  to  be 
determined,  is  this:  The  sale  of  goods  by 
one  who  has  tnrtiously  obtained  their 
possession  without  the  owner's  consent, 
vests  in  the  purchaser  no  title  to  them  as 
against  the  owner.  As  a  general  rule  no 
man  can  be  divested  of  his  (iroperty  with- 
out his  own  consent  and  voluntary  act. 
It  is  true  that  there  are  e.\ceptionH  to  the 
rule,  as  clearly  defined  and  as  well  settled 
as  the  rule  itself,  but  this  case  (bies  not 
come  within  any  of  them.  Here  the  de- 
fendants' vendor,  as  we  have  seen,  ac- 
quired no  right  or  title  to  the  wool  under 
his  contract  with  the  plaintiff,  and  he  did 
not  obtain  from  him  its  actual  posses- 
sion. The  railroad  company  had  no  au- 
thority, as  the  plaintiff's  agent,  to  deliver 
the  wool  to  him,  and  their  delivery  gave 
him  no  right  or  title  to  it  whatever.  Nor 
had  he  any  apparent  or  implied  authority 
from  the  plaintiff  to  sell  or  dispose  of  it. 
It  is  clear,  then,  that  he  could  convey  no 
title  by  its  sale;  an<l  if  so,  the  defendants 
could  acquire  no  title  by  its  purchase, 
though  they  purchaser!  it  fur  a  fair  and 
valuable  consideration,  in  the  usual  course 
of  trade,  without  notice  of  the  pi:iintiff'e 
ownershii),  or  of  any  suspicious  circum- 
stances calculated  to  tiwaken  inquiry  or 
put  them  on  their  guanl.  The  c.ise  is  a 
hard  one  in  any  aspect  of  it.  One  of  two 
innocent  i)arties  must  suffer  by  the  fraud 
and  knavery  of  n  swindler,  who  had  no 
authority  to  act  for  eithei-.  But  the  law 
is  well  settled  that  the  owner  cannot  be 
dive-ited  of  his  property  without  his  own 
consent,  unless  he  has  placed  it  in  the  pos- 
session or  custody  of  another  anil  given 
him  an  apparent  or  implied  right  to  dis- 
pose of  it.  The  case  was  tried  on  tliis 
principle,  and  as  there  Is  no  error  appar- 
ent in  the  record,  the  judgment  must  be 
affirmed. 

Judgment  allirined. 


BAItXAltD  V.  CAMPBELL. 


2» 


BAIINAUD  V.  CAMI'BICLL,. 

(55  N.  Y.  45C.) 

Court  of  Appeals  of  New  York.    Jan.  20,  1874. 

Appeal  from  order  reverpinK  a  jixlKinoiit 
in  fuvur  of  plaiiitiffij  and  K>'uutiiig  u  new 
trial. 

Heplevin  of  1,370  bags  of  linseed.  I)e- 
femlaiitM,  in  New  York,  piirclinHcd  of  the 
broker  of  one  Jeffries,  of  BoHton,  l.MM) 
baus  of  linseed  on  AiiKiiHt  21,  lS(i:j.and  sent 
him  their  notes  in  i)M,vment.  Jeffries,  by 
fraud,  obtained  1,370  l)aKs  on  an  order 
from  plaintiffs  on  Aumist  2-ltli.  Tlie  lin- 
seed was  delivered  to  liim,  and  Hliipi)ed  to 
defendants.  The  bill  of  ladintcwas  mailed 
to  them  on  the  2.')tli.  Defendants  paid  for 
the  linseed  by  their  notes  on  the  2l8t. 
Jeffries  failed  on    the   27th. 

Janies  C.  Carter,  for  appellants.  Ed- 
wards I'icrrepont,  for  respondents. 

ALIjEN,  J.  The  only  question  involved 
in  tile  action  la,  w  hether  the  plaintiffs  and 
orlKiiial  owners,  or  tlie  defendants,  the 
purchasers  from  .leffries,  the  fraudulent 
vendee  of  the  plaintiffs,  have  the  better 
title  to  tlie  merchandise  in  controversy. 
That  ns  ai^ainst  Jeffries,  the  rijrht  of  the 
plaintiffs  to  rescind  the  sale  and  reclaim 
the  f-ooils,  by  reason  of  the  fraud  of  the 
latter,  is  perfect,  is  conceded,  and  was  so 
held  upon  the  trial.  Such  right  continues 
as  against  any  one  acquiring  title  under 
Jeffries,  unless  under  well-recognized  prin- 
ciples of  law,  and  under  the  circumstances 
of  this  case  .leffries  could  transfer  a  bett  'r 
title  than  lie  had,  or  the  plaintiffs  b>  their 
acts  are  estopped  from  asserting  title  as 
against  a  purciiaser  from  him. 

liut  two  questions  oi  fact  were  sulmiit- 
ted  to  the  jury:  1.  Whether  the  sale  to 
.leffries  was  for  cash  or  upon  creilit ;  anil, 
2.  If  tor  cash,  whether  payment  was 
waived  and  the  goods  delivered  so  as,  but 
for  the  fratld,  to  vest  the  property  in 
Jeffries. 

The  jury  found,  either  that  the  sale  was 
upon  credit,  or  that  the  payment  of  the 
purchase-price,  as  n  coudition  precedent 
to  the  delivery  of  tlie  property  to  and  the 
vesting  of  the  title  in  .leffries  was  waived, 
and  that  the  delivery  to  him  was  absolute 
and  unconditional;  and  the  defendants 
had  a  verdict,  under  tlie  instructions  of 
the  judge,  that  the  eipiitalde  rule  applied, 
that  when  one  of  two  innocent  parties 
must  suffer  loss  by  reason  of  the  fraud  or 
deceit  of  another,  the  loss  shall  fall  uiion 
him  by  whose  act  or  omission  the  wrong- 
doer has  been  enabled  to  commit  the 
fraud;  and  that  the  plaintiffs  were  in  the 
position  of  a  party  who  lets  another  have 
property  unconditionally,  and  tliereby  en- 
ables him  to  sell  the  same  and  receive  the 
purchase-price  from  n  third  person;  and 
that  In  such  case  the  purchaser  takes  the 
title.  In  other  words,  the  plaintiffs  were 
held  to  be  estopi)ed  from  claiming  the 
goods  from  the  defendants  incase  the  jury 
found  that  there  had  been  an  uncondi- 
tional delivery  by  the  plaintiffs  to  .leffries, 
notwithstanding  !is  the  judge  at  the  cir- 
cuit expressly  declared,  and  ns  the  evi- 
dence showed,  the   defendants    purchased 


the  goods  fr(jm  a  broker  of  Jeffries  la  New 
York  on  the  21st  of  August,  and  paid  for 
them  the  same  day  by  transmitting  their 
notes  to  Jeffries  at  l.oston,  who  at  once 
ueg(jtiated  them;  and  Jeffries  olitained 
neither  the  property  nor  any  order  for  its 
delivery,  or  documentary  eviileni.-e  of  title 
or  of  his  purchase,  until  the  24th  of  the 
same  month,  three  days  after  the  trans- 
action was  coiiHummated  as  between 
Jeffries  and  the  defendants.  That  is,  it 
was  held  ut  the  circuit  that  the  subse- 
quently-acquired possession  of  Jeffries  op- 
erated by  relation  to  create  an  estoppel 
•IS  of  tilt!  21st  of  August,  in  favor  of  the 
defendants  and  against  the  plaintiffs;  and 
the  jury  were  in  terms  instructed  that  the 
defendants  were  (lurchasers  in  good  faith 
for  value,  and  acquired  a  title  paramount 
to  that  of  the  plaintiffs,  and  were  entitled 
to  a  verdict;  and  they  liad  n  verdict  and 
juilgment  upon  this  view  of  their  rights. 

That  the  defendants  were  purchasers  in 
gcjod  faith,  that  is,  without  notice  or 
knowledge  <if  the  fraud  of  Jeffries,  or  of 
the  defects  in  his  title,  for  a  full  consldera- 
ti(jn  actually  paid  to  Jeffries,  is  not  dis- 
puted. Both  plaintiffs  and  defendants 
.are  alike  inixjceiit  of  any  dishonest  or 
[fraudulent  intent,  ond  one  or  the  other 
must  suffer  loss  by  the  frauds  of  one  with 
I  whom  they  dealt  in  good  faitli,  for  legiti- 
mate purposes, and  with  honest  intention. 
Both  were  alike  the  victims  of  the  sniue 
fraudulent  actor,  unrl  if  one  rather  than 
the  other  of  the  parties  has  ilone  any  act 
en.-ibllng  the  fraud  to  be  commit  ted,  and 
without  which  it  could  not  have  been  per- 
petrated u|)on  the  other  in  the  exercise  of 
ordinary  care  and  discretion,  the  loss 
should,  within  the  rule  before  referred  to, 
fall  on  that  one  of  the  parties  aiding  and 
abetting  the  fraud,  or  enabling  it  to  be 
comn  itted.  But  good  faith,  and  a  [lart- 
ing  of  value  liy  the  one,  will  not  ulone  de- 
termine will)  should  have  the  loss,  or  fix 
the  ownership  of  the  property  fraudulent- 
ly purchased  from  the  one  .-ind  sold  to  the 
other.  The  general  ruleis  that  a  purchaser 
of  property  takes  only  such  title  as  his 
seller  has,  and  is  authorized  to  transicr; 
that  he  accpiires  precisely  the  interest 
whicli  the  seller  owns,  and  no  other  or 
greater.  "Nemo  plus  juris  ad  alium  trnns- 
ferre  potest  quam  ipse  habet."  Broom. 
Leg.  Max.  452.  Tlie  general  rule  of  law  Is 
undoubted  that  no  one  can  transfer  a  bet- 
ter title  than  ho  himself  possesses.  "Nemo 
dat  (|uod  non  haliet."  I'er  Willes,  J., 
Whistler  v.  Forster,  14  C.  B.  (.V.S.)  24.S. 
To  this  rule  there  are  however  some  ex- 
ceptions, and  unless  the  defendants  are 
witliin  the  exceptions  they  must  abide  by 
the  title  of  Jeffries. 

One  of  the  recognized  exceiitlons  applies 
to  negotialile  instruments  only,  and  de- 
pends for  its  existence  upon  the  law-mer- 
chant and  the  reasons  of  public  policy 
U|)on  which  that  branch  of  the  law  rests. 
To  uinUe  this  exception  available,  the 
negotiable  jiuper  must  be  actually  trans- 
ferred \iy  Indoi-sement  lu  the  usual  form 
aud  forvalue.  Whistler  v.  Forster. supra  ; 
Muller  v.  Fondir,  (In  this  court,  Decenmer 
23.  1S73,)  5.-)  N.  Y.  32.");  (a)  Storv  Prom. 
Notes,  §  120.  note  1,  Calder  v.  Pilllngton, 
15   Me.  3US;  Southard    v.    Porter.  43  N.  H. 


30 


BAUNAHD  c.  CAMTBELL. 


379.  Another  exception  is  in  tlie  case  of  a 
tranHfei-  l).v  indorsement  and  delivery  of  a 
bill  of  ladiuK,  wliicli  is  tlie  synilxil  of  tlie 
property  itself,  to  a  l)ona  fiile  purchaser 
for  value,  Ijy  a  consignee  to  wliom  the 
consignor  and  original  owner  i>f  the 
goods  has  indorsed  and  delivered  it.  This 
exception  is  founded  on  the  nature  of  the 
instrnuient,  and  the  necessities  of  coni- 
ineree.  The  bill  of  lading,  for  the  conven- 
ience of  trade,  has  been  allowed  to  nave 
effect  at  variance  with  the  general  rule  of 
law.  Hut  this  operation  of  a  bill  of  lad- 
ing is  confined  to  a  case  whei-e  the  person 
who  transfers  the  right  is  liiniself  in  i>os- 
session  of  the  hill  of  lading  so  as  to  be  in 
a  situation  to  transfer  the  iustruniont  it- 
self, the  symbol  of  the  propei-ty  tran.s- 
ferred.  .leiikyns  v.  llsborne,  7  M.&  U.G7.S: 
Akeruian  v.  llnniphery,  1  C.  &  F.  5:!. 

Bills  of  lading-differ  essentially  from  bills 
of  exchange  and  other  commercial  nego 
liable  instruments;  and  even  possession  of 
a  bill  of  lading,  without  the  authority  of 
the  owner  an<l  vendor  of  the  goods,  or 
when  obtained  by  fraud,  will  not  authorize 
a  transfer  so  as  to  defeat  the  title  of  the 
original  owner,  or  aflA't  his  right  to  re- 
scind the  sale  and  stop  the  goods  in  transit. 
While  possession  of  a  l)illof  lading,  or  other 
document  of  a  like  nature  may  be  evidence 
of  title,  and  in  soniecirciiirstances  and  for 
some  purposes  e(piivalent  to  actual  pos- 
session of  the  goods,  it  does  not  constitute 
title,  nor  of  itself  affect  the  operatii>n  of 
the  general  rule  that  property  in  chattels 
cannot  be  transferred  except  by  one  hav- 
ing the  title  or  an  authority  from  the  true 
owner,  (iurney  v.  Behrend,  3  Ellis  & 
Black.  622;  Dows  v.  Perrin,  Ki  N.  Y.  32.5; 
see  also  Saltus  v.  Everett,  2i)  Wend.  207 ;  32 
Am.  Dec.  .'541  ;  Brewer  v.  Peabody,  i:^  N.  Y. 
121.  .Jeffries  had  no  bill  of  lading  from  the 
jilaintiffs,  thevendors  of  the  goods. or  any 
document  of  like  character  transferable  in 
the  usual  course  of  business,  ami  the  trans- 
fer and  delivery  of  which  to  a  purchaser 
for  value  would  have  operated  as  a  sym- 
bolical delivery  of  the  goods,  and  been  the 
equivalent  of  an  actual  delivery,  so  as  to 
terminate  the  right  of  the  plaintiffs  to  re- 
scind the  sale  and  reclaim  the  goods. 

Another  exception  to  the  general  rule 
exists  in  thecaseof  a  sale  inmarket  overt; 
but  as  we  have  no  markets  overt,  and 
there  are  no  sales,  public  or  private, 
known  to  our  law,  which  reliex'ethe  buyer 
of  merchandise  from  the  rule  of  caveat 
emptor,  as  applied  to  the  title,  this  excep- 
tion need  not  be  further  considered. 

The  defendiints  can  only  resist  the  claim 
of  the  plaintiffs  to  the  merchandise  by  es- 
tal)lishing  an  equitable  estopjiel,  founded 
ujjon  the  acts  of  the  plaintiffs,  and  in  the 
application  of  the  rule  applied  l>y  the  judge 
at  the  circuit,  by  which,  as  between  two 
persons  equally  innocent,  a  loss  resulting 
from  the  fraudulent  acts  of  another  shall 
rest  upon  liini  by  whose  act  or  omission 
the  fraud  has  been  made  possible.  This 
rule,  general  in  its  terms,  only  operates 
to  protect  those  who,  in  dealing  with 
others,  exercise  ordinary  caution  and  pru- 
dence, and  who  deal  in  the  ordinary  way 
and  in  the  usual  course  of  business  and 
uiion  the  ordinary  evidences  of  right  and 
authority  in   those  with  whom    they  deal, 


and  as  against  those  who  have  volun- 
tarily confei'red  upon  others  the  usual  evi- 
dences or  indicia  of  owDershii)of  property, 
or  an  apparent  autliority  to  deal  with 
and  dispose  of  it.  In  such  case,  for  ol)vi- 
ous  reasons,  the  law  raises  an  equitable 
estoppel,  and  as  against  the  real  owner, 
declares  that  the  apparent  title  and  au- 
tluuity  which  exists  b.v  his  act  or  omis- 
sion siiall  (luoad  persons  acting  and  part- 
ing with  value  upon  the  faith  of  it,  stand 
for  and  be  regarded  as  the  real  title  and 
authority.  It  is  not  every  parting  with 
the  possession  of  chattels  or  the  documen- 
tar.v  evidence  of  title  that  will  enable  the 
possessor  to  make  a  good  title  to  one 
who  may  purchase  from  him.  So  far  as 
such  a  parting  with  tlie  possession  is  nec- 
essary in  the  business  of  life, or  authorized 
by  the  custom  of  trade,  the  owner  of  the 
goods  will  not  be  affected  by  a  sale  by 
the  one  having  the  custody  and  manual 
possession.  Dyer  v.  Pearson,  3  B.  &  C.  3.S; 
Newsom  v.  Thornton,  G  East,  17;  Taylor 
V.  Kymer,  3  Barn.  &  Adol.  32U;  Ballard  v. 
Burgett,  -10  N.Y.314.  But  theowner  must 
go  farther,  and  do  some  act  of  a  nature  to 
mislead  third  persons  as  to  the  true  posi- 
tion of  the  title.  Pickering  v.  Busk,  15 
East,  38. 

Two  things  must  concur  to  create  an 
estoppel  by  which  an  owner  may  be  de- 
prived <jf  his  proi)erty,  liy  tlie  act  of  a 
third  person,  without  his  assent,  under 
the  rule  now  considered.  1.  The  owner 
must  clothe  the  person  assuming  to  dis- 
pose of  the  projterty  with  the  ajjparent 
title  to,  or  authority  to  dispose  of  it;  and, 
2.  The  i>erson  alleging  the  estoppel  niu.st 
have  acted  and  parted  with  value  upon 
the  faith  of  sucli  apparent  ownersliip  or 
autliority,  so  that  he  will  be  the  loser  if 
the  ap]iearances  to  whicli  lie  trusted  are 
not  real.  In  this  respect  it  does  n(jt  differ 
from  other  estoppels  in  pais.  Weaver  v. 
Barden,49  N.  Y.  2S();  McGoldrick  v.  Wil- 
lits,  52  id.  612;  City  Bank  v.  It.,  W.  &  O. 
H.  Co.,  44  id.  ]3(>;  Saltus  v.  Even  tt,  20 
Wend.  267;  32  Am.  Dec.  541;  Wooster  v. 
Sherwood,  25  N.  Y.  27s;  Brower  v.  Pea- 
body,  13  id.  121. 

In  the  case  before  us  every  element  of  an 
estoppel  is  wanting,  and  no  case  was 
made  for  the  application  of  the  rule  by 
which,  under  some  circumstances,  one, 
rather  than  the  other  two  innocent  per- 
sons, is  made  to  bear  the  loss  occasioned 
by  the  fraud  of  a  third  person. 

The  defendants  consummated  their  pur- 
chase from  Jeffries,  acting  through  his 
broker  in  New  York,  and  paid  for  the  mer- 
chandise by  remitting,  at  his  request,  di- 
rectly to  Jeffries  on  tlie  2Ist  of  August,  at 
which  time  Jeffries  had  neither  the  posses- 
sion nor  right  of  possession  of  the  prop- 
erty, nor  any  documentary  evidence  of  ti- 
tle or  any  indicia  of  ownership,  or  of  do- 
minion over  the  property  of  any  kind. 
The  plaintiffs  had  done  nothing  to  induce 
the  defendants  to  put  faitli  in  or  give 
credit  to  the  claim  of  Jeffries  of  the  right 
to  sell  the  property.  The  defendants  then 
parted  with  the  consideration  for  the  pur- 
chase of  the  seed,  not  upon  the  apiiarent 
ownership  of  Jeffries,  but  upon  his  asser- 
tion of  right  of  which  the  plaintiffs  had  no 
knowledge,  and   for   which   they   are  not 


BARNARD  v.  CAMPBELL. 


31 


responsible.  Neither  did  tliedi-fendants  at 
any  time  do  or  forbear  to  do  any  act  in 
reliance  upon  llie  uppai'ent  ownerHliip  of 
the  projjerty  by  Jeffries,  or  iiiiliin-d  by 
anv  act  or  declaration  of  tlii'  idaintiffH. 
In  "Knights  v.  Wiffen,  L.  R.,  5  Q.  B.tJflD.the 
plaintiff  was  intiuced  to  rest  satisfied  un- 
der the  l)eliel  that  he  had  acquired  title  to 
the  property  [)urcl)aHed,  and  so  to  alter 
his  position,  by  al)stainlnK  from  proceed- 
iii^s  to  i-ecnver  bacli  the  money  which  he 
had  paid  to  his  vendor,  by  the  declaration 
of  the  defendant  that  it  was  all  ri;rht,  and 
his  |)romiHe  tliat  wlien  the  furwardiiiu: 
note «liould  lie  received  he  would  put  the 
barle.v  on  the  line.  The  defendants  hei'e 
at  no  time  had  any  declaration  or  state- 
ment of  the  i)lain tiffs  upon  wlilcli  to  rely, 
and  were  not  led  to  act  or  forbear  to  art 
by  any  documentary  evidence  of  title  in 
Jeffries  emanatinu  from  them.  There  is  a 
manifest  equity  in  holdiuR  the  owner  of 
property  estopped  from  nssertin;?  title  aw 
afiainst  one  wlio,  for  value  actually  paid, 
has  purchased  it  from  one  having,  by  the 
voluntary  act  or  negliRence  of  the  owner, 
the  apparent  title  with  right  of  disposal, 
but  with  this  limitation  there  is  no  hard- 


ship in  bidding  to  the  rule  that  the  right 
of  property  in  chattels  cannot  be  trans- 
ferred unless  on  the  ground  of  authority 
or  title.  Public  policy  requires  that  pur- 
chasers of  property  should  be  vigilant  and 
c.iutious,  at  least  to  the  extent  of  seeing 
that  their  vendors  have  some  and'tho 
usual  evidence  of  title,  and  if  tliey  are  coru 
tent  to  rest  upon  their  declarations  they 
may  not  impose  the  loss,  vk-hich  is  the  re- 
sult of  their  own  incautiousness  or  credu- 
lity, on  another.  The  payment  for  or 
parting  witli  value  for  the  goods  by  ths 
purchaser  ir<jm  the  fraudulent  vendee  lays 
at  the  foundation  of  the  estoppel,  for  if  ho 
has  parted  with  notliing,  he  cnn  lose 
nothing  by  the  retaliing  of  the  goods  by 
the  original  owner,  and  that  payment 
must  be  occasioned  by  the  acts  or  oraia 
sitms  of  such  owner.  It  is  the  payment 
that  creates  the  estoppel,  and  if  that  is 
not  made  in  reliance  on  the  acts  of  the 
owner,  tlie  latter  is  not  and  cannot,  in 
the  nature  of  things,  be  estopped. 

The  order  granting  a  new  tral  must  he 
affirmed,  and  judgment  absolute  for  the 
plaintiffs. 

All  concur. 


BAUNAKD   c.  CAMI-liKJX. 


33 


BAKXAKD  T.  CAMPBELL. 

(58  N.  Y.  73.) 

Court  of  Appcal-s  of  New   York.     June  Term, 
1S74. 

Motion  for  re-nrKuiucnt. 

J  a  nif  8  C.  Carter,  for  motion.  Edwards 
Pierrepont,  opposed. 

ALLEN,  J.  The  question  considered  by 
tliis  court,  and  discu-ssed  in  tlio  opinion 
delivere<l  on  Kivlnt;  jiidKnient  u|)on  this 
appciil  was  tluir  distinctly  presented  l)y 
tiie  exceptions  to  the  riilinf?  and  decisions 
of  tlic  jiid^e  upon  tlie  trial,  and  as  tliat 
was  decisive  and  led  to  an  alfirinance  of 
the  order  (jrriintliiK  a  new  trial  and  u  final 
jiidf?nient  for  the  plaintiffs,  it  was  not 
deemed  necessary,  in  assiKninK  the  reasons 
for  the  jndKiiient,  to  canvass  particularly 
the  argument,  or  review  in  detail  the  au- 
thorities cited  li.v  counsel  upon  a  some- 
what different  view  of  thecase.  Theentire 
brief,  and  all  the  autliorities  cited,  were 
nevertheless,  carefully  examined  and  con- 
sidered ;  and  had  the  court  adopted  the 
views  of  the  learned  counsel  for  tlie  ap- 
liellants,  it  is  possil)le  a  way  miuln  liave 
licen  found  to  sustain  the  defendants' 
ilaim  to  tlie  property,  notwithstHndinj; 
the  pointed  exceptions  to  jjropositions  in 
the  instruction.s  to  the  jury,  which  were 
deemed  erroneous.  Tlie  case  lias  l>een 
Mirain  carefully  examined,  and  upon  the 
theory  of  the  counsel  for  the  appellants, 
and  with  the  aid  of  his  very  able  brief,  sub- 
mitted upon  the  present  motion,  and  the 
court  sees  no  reason  to  interfere  with 
the  judgment  already  Riven.  It  is  proper 
to  sa.v  that  the  unusual  delay  in  passini; 
upon  the  present  application  has  not  been 
bei-ause  of  any  intrinsic  difliculties  in  tlie 
(juestioii  [iresented,  "ir  an.v  serious  doubt 
as  to  the  correctnesHof  theformerdecision. 

lB(dated  expressions  nui.v  be  found  in 
elementar.v  treatises,  as  well  as  in  judicial 
opinions,  which  itive  color  to  theclnim  of 
the  defendants,  to  hold  the  propert.v  In 
disiiute  as  against  the  plaintiffs,  but  these 
were  not  intended  to  and  do  not  give  the 
rule  by  which  this  and  like  case.s  are  con- 
trolled. They  are  all  proper  in  the  connec- 
tion in  which  they  ;ire  fouiiil  and  for  the 
purposes  for  which  they  were  used,  and 
ought  not  to  receive  any  other  interpre- 
tation than  such  as  was  designed  by  the 
authors.  It  must  be  conceded  that  upon 
the  delivery  of  the  goods  to  .leffries  by  the 
plaintiffs,  under  tlie  circunislances,  the 
property  passed  to  .leffries,  and  the  fact 
that  thedelivery  was  iuiluced  by  fraud  di<l 
not  render  the  contract  void.  It  was 
merel.v  voidable  at  the  instance  of  the 
plaintiffs,  who  might  elect  to  disallirm 
the  contract  anil  reclnim  the  property. 
That  is,  the  contract  of  sale  was  defeasible 
at  tlie  election  of  the  plaintiffs,  the  ven- 
dors. If  the  election  was  seasonably  made, 
and  the  goods  reclaimed  in  proper  time 
after  the  discovery  of  the  fraud.  The 
plaintiffs  could  lose  the  right  by  delay  as 
against  tin-  wrongdoer,  if  in  conseiiuence 
of  such  ilcla.v  Ills  iiosition  should  be 
rlianged,  and  they  w<:uld  havi-  lust  it  ab- 
solutely if  during  the  interval  between  tlie 
delivery  of  tlie  goods,  the  vesting  of  this 
LAW  .s.M.iis — :i 


defeasible  title  in  the  purchn.ser,  Jeffries, 
and  the  dlsaffinnnnce  of  the  sale  by  the 
plaintiffs,  the  goods  had  been  sold  to  an 
inniicent  thinl  parly  for  a  valuable  con- 
Hi<leration.  The  superior  ei)uity  of  a  pur- 
chaser of  property  from  one  who  has  nc- 
(piired  a  title  defeasible  at  the  electii>n  of 
the  former  owner  and  vendor,  by  reason 
of  fraud,  to  that  of  such  owner  seeking  to 
reclaim  his  projierty,  is  based  upon  the 
fact  that  acting  upon  the  evidence  of  title 
which  the  owner  has  permitted  the 
wrong-doer  to  assume  and  [lOHHess.he  has 
been  induced  to  part  with  value,  and  will 
be  the  loser  because  of  thi- credit  given  to 
the  apparent  ownership  if  he  is  compelled 
to  surrender  the  property.  The  mere  pos- 
Hcssion  by  the  party  claiming  to  liol.l  will 
not  sustain  his  claim,  but  the  circum- 
stances under  and  consideration  upon 
which  he  liaH  acquired  tlie  possession  are 
also  material.  Were  it  otherwise,  an  as- 
signee for  the  benefit  of  creditors,  or  one 
who  should  take  as  collateral  security  for 
the  payment  of  a  [irecedent  debt,  would 
hold  as  against  the  original  owner,  which 
Is  not  claimed  and  is  contrary  to  the 
whole  current  of  authority.  Several 
things  must  concur  to  bar  the  claim  of 
the  defrauded  vendor.  1.  He  must  have 
parted  with  possession  of  his  projierty 
with  intent  to  pass  the  title  to  the  wrong- 
doer, thus  giving  liini  the  apparent  right 
of  disposal.  If  property  is  taken  feloni- 
ously or  without  the  consent  of  the  owner 
the  taker  can  make  no  title  to  it,  even  to 
an  innocent  purch.-iser  with  value,  2.  A 
third  |i!irt.v  must  have  acnuired  title  from 
the  wrong-doer  without  notice  of  the  ile- 
fects  in  liis  title  or  knowledge  of  circum- 
stances to  put  him  to  an  inquiry  as  to  the 
source  of  his  title.  And,:!.  .Such  third 
[larly  iiiiist  liave  parted  with  value  upon 
the  faith  of  the  apparent  title  of  the 
wrong-doer,  anil  his  right  to  dispose  of 
the  property.  If  any  of  these  elements  ore 
wanting  the  venilor  sensonably  pursu- 
ing his  legal  right  nia.v  have  his  property. 
That  this  formula  very  closely  resembles 
that  liy  which  an  estoppel  in  pais  is  de- 
fined and  limited  is  true,  and  this  must 
necessarily  be  so,  so  long  as  the  rights 
liased  upon  each  have  the  same  equitable 
foundation.  The  <lefendants  parted  with 
no  value,  incurred  no  liability,  and  in  no 
res|iect  changed  their  situation  in  the  in- 
terval between  the  delivery  of  the  mer- 
chandise by  tlie  plaintiffs  to  Jeffries,  and 
their  disnllirmancc  of  the  contract,  and 
reclaiming  the  goods.  In  other  words, 
tlie.v  di<l  notliing  in  consequence  of  such 
delivery  to  Jeffries  or  based  upon  Ills  title 
and  possession,  and  arc  in  precisely  the 
same  situation  as  if  the  goods  had  never 
left  the  possession  of  the  plaintiffs.  They 
(larted  with  their  notes  and  incurred  obli- 
gations upon  the  faitli  of  the  promise  and 
agreement  of  Jeffries  an<l  upon  his  credit 
alone. 

It  ispossilile  that  theclaimof  tlie<lefend- 
ants  to  hold  as  liona  tide  purchasers  for 
value  is  sustained  liy  Fenliy  v.  rritcliard, 
1.' Snndf.  l.')l.  but  this  case  is  so  at  war 
witli  principles  recognized  as  well  settled 
by  this  court  in  analogous  cases,  that  it 
cannot  lie  regarded  as  well  decided.  The 
cases  cited  fioiu  .Maine  and  Illinois  (Lee  v. 


BAKNAKI)  V.  CAMPBELL. 


Kimbull,  ■!.-.  Me.  173;  Butters  v.  Haiisrli- 
woiit,  4U' III.  l.S;  X!)  Am.  Dee.  4f)I).  treat 
the  case  as  aiinloKoiis  to  a  transfer  of 
nesotiahle  paper,  and  hold  that  a  i)reccd- 
eiit  debt  is  a  valuable  consideration  for 
the  transfer,  and  «ives  the  transferes  a 
good  title  as  against  the  former  owner. 
This  is  in  direct  conflict  with  the  uniform 
decisions  in  this  State,  from  Bay  v.  Cod- 
dinjrton,  5  .Johns,  ("h.  .">4  ;  9  Ani.  Dec.  L'liS; 
aliirnied,  L'O  Johns.  (".37,  to  Weaver  v 
Barden,  49  N.  Y.  286;  afHrnied,  Turner 
V.  Treudway,  53  id.  (!.')().  One  other 
case  from  Maine  cited  by  the  counsel 
for  the  appellants  (Titcomb  v.  Wood, 
;is  Mc.  .">G1)  recognizes  the  necessity  of  a 
valuable  consideration,  as  that  term 
is  understood  and  used  by  the  courts  of 
this  state  as  necessary  to  give  tlie  pur- 
chaser of  property  from  a  fraudulent  ven- 
dor a  superior  equity  and  title  to  that  of 
the  former  t)v\'ner,  and  Hnd  such  a  consid- 
eration in  the  transfer  of  property  before 
then  stolen  from  the  defendant.  Thecourts 
Siiy:  "Here  the  defendant  being  the 
owner  of  stolen  property,  with  his  right 
and  title  unimpaired  by  the  felony,  trans- 
ferred it  to  McClurefortheproperty  in  ques- 
tion, in  part  payment  at  least.  This  con- 
stituted a  valuable  consideration  for  his 
purchase,  given  at  the  time.  Thus  it  ap- 
pears that  he  was  a  purchaser  ot  the  gold 
watch,  bona  tide,  for  a  valuable  consider- 
ation, and  without  notice  of  the  fraud 
by  wliich  his  vendor  acquired  it.  This 
gives  him  a  superior  equity  and  a  better 
right,  and  enables  him  to  hold  the  prop- 
erty against  the  defrauded  vendor."  Hut- 
ton  V.  Oruttwell,  1  El.  &  Bl.  1.5;  and  Mer- 
cer V.  Peterson,  L.  K.,  2  Exch.  304,  relied 
upon  in  support  of  this  application,  pre- 
sented questions  under  the  English  Bank- 
rupt Acts,  and  merely  decided  that  a  trans- 
fer of  effects,  by  the  bankrupt,  in  perform- 
ance of  a  prior  executory  agreement,  for 
which  a  full  consideration  had  been  paid 
at  the  time  of  the  agreement,  was  not 
within  the  condemnation  of  the  act  or  af- 
fected by  the  proceedings  in  bankruptcy. 
They  do  not  bear  upon  the  question  be- 
fore us.  In  Olongh  v.  London, etc., R.  Co., 
L.  R.,  7  Exch.  2G;  I  Eng.  Kep.  14S,  the 
question  was  whether  the  claim  to  dis- 
aihrm  the  sale  of  the  goods  was  season- 
ably made  by  the  defrauded  vendor.  The 
vendor  had  first  sought  to  stop  the  goods 
in  transitu,  which  was  an  act  in  affirmance 
of  the  sale;  tiut  the  transit  was  ended  be- 
fore notice  reached  the  carrier.  There  was 
no  act  avoiding  the  contract  on  the 
ground  ol  fraud  done  by  the  vendor,  until 
the  plea  in  the  action  by  Clough,  who 
was  found  by  the  jury  to  be  cognizant  of, 
and  a  |)arty  to  the  fraud  in  the  purchase. 
No  question  of  consideration  or  the  valid- 
ity of  any  sale  of  the  goods  by  the  fraud- 


ulent purchaser  was  in  the  ease,  or  con- 
sidered by  tlie  court.  Durbrow  v.  McDou- 
ald,  .5  Bosw.  130;  s.  c,  sub  noni.  Winne  v. 
McDonald,  3!)  N.  Y.  233,  wis  clearly  within 
th('  rule  upon  the  interpretation  given  to 
the  transaction  by  the  courts.  It  was 
said  by  the  superior  court  that  Perry  & 
(;o.,  the  purchasers  of  the  wheat,  had  the 
full  possession  of  it  in  the  precise  manner 
that  the  contract  between  thetn  and  the 
plaintiffs  contemplated,  and  that  the  pur- 
chase and  possession  of  Perry  were  such 
as  to  enable  him  to  confer  upon  a  bona 
fide  purchaser,  a  pledgee  for  value,  a  title 
valid  as  against  the  plaintiffs;  and  that 
the  advance  was  made  by  the  defend- 
ants after  the  delivery  to  Perry  &  Co.  of 
the  documentary  evidence  of  title,  and 
the  wheat  pledged  as  secuiity  at  the  time 
of  the  advance.  The  evidence  upon  the 
record  in  this  court,  it  would  seem,  left 
the  precise  time  when  some  of  the  occur- 
rences took  place  in  doubt,  but  tliat  the 
specific  wheat  was  pledged,  at  the  time  of 
the  advance,  was  established,  although 
possibly  the  muniments  of  title  were  not 
then  delivered.  The  title  ami  possession 
had  vested  in  Perry  &  Co.  at  the  time  of 
the  pledge;  and  that  fact  clearly  distin- 
guished that  from  the  present  case. 

Judge  Bosworth,  in  Caldwell  v.  Bart- 
lett,  3  Duer,  341,  and  Keyser  v.  Harbeck, 
id.  373,  recognizes  the  doctrine  that  the 
advance  must  be  made  or  consideration 
parted  with  upon  the  faith  of  the  title  ot 
one  in  actual  possession  of  the  property, 
or  the  written  evidence  of  title,  to  give  an 
indefeasible  title  as  against  the  true 
owner.  All  the  authorities  are  direct  and 
to  the  effect  that  no  one  but  a  bona  tide 
purchaser,  or  pledgee  for  value— that  is, 
one  who  gives  value  for  or  makes  ad- 
vances upon  goods  obtaitied  from  the 
owner  by  fraud  or  fraudulent  representa- 
tion— and  tliat  he  who  has  paid  value,  or 
made  advances,  or  incurred  responsibili- 
ties upon  the  credit  of  them,  can  alone 
claim  to  hold  them  as  against  such  owner. 
Root  V.  French,  13  Wend.  .'')73;  2S  Am. 
Dec.  482;  Mowrey  v.  Walsh,  8  Cow.  23S; 
Hoffman  v.  Noble,  C.  Mete.  68;  39  Am.  Dec. 
711.  There  is  no  good  reason  or  equity  in 
placing  the  burden  of  a  fraudulent  sale 
upon  a  bona  fide  vendor  rather  than  upon 
a  bona  fide  purcha.ser  from  the  fraudulent 
vendee,  unless  the  purchaser  has  parted 
with  his  money,  or  some  value,  upon  tlie 
credit  ot  possession  or  some  evidence  of 
title  in  the  vendee,  received  from  the  orig- 
inal owner,  and  by  means  of  which  he  has 
induced  the  purchaser  to  treat  with  him 
as  owner. 

The  motion  for  a  re-argument  must  be 
denied. 

All  concur,  except  JOHNSON,  J.,  not 
sitting. 


BEACH'S  APPEAL. 


37 


Appeal  of  BEACH. 

(20  All.  Hep.  475,  58  Conn.  464.) 

Pi)prrmi>  Court  of  Errors  of  Connecticut.     Feb.  7, 

ISUO. 

.\pppal   from   Hiiperior    court,  Hartford 
county.  ,         ,    ^      , 

The  contract   and   note   roforrcd   to    in 
the  opinion  are  as  follows:     "This  nicrno- 
randuni  of  iin  agrceincnt  made  this  :!d(la.v 
of    March,    lNS(i,   between   Georjje  Cronip- 
ton,  of  the  lirst  part,  and  the  Home  Wool- 
en Co.,  CharlcH  M.  IJeach,  treaKiirer,  of  the 
Hccond  part.    Wlierean,  the  waid  Crompton 
of  the  lirst   i)art   asrees   to  deliver  to   the 
said  parly  of  the  second   part  certain   ar- 
ticles of   machinery,  to-wit,  thirty    broad 
Crompton    '1SS3'    fancy    looms   (twenty- 
ei«ht  of  which  are  sinKlc-beani  looms,  and 
two  are  donhlc-beam  looms,)  and  lixtures 
thereto     beloiiKiiiK.   amountiuj?     to    $12.- 
450  CI),  and    the  party  of   the  second   part 
agrees  to  jrive  the   party  of   the   first  part 
its   promissory   note  dated    tlie    avcray;e 
Bhi[)pinK  date  of  the  looms,  and  payable 
eight  months  from  its  date,  for  ^12,450.09. 
It  is    hereby  asreed    by   the    said   parties 
that  the  party  of  the  second  part  shall   be 
permitted  to  talie  the  saiil   property  into 
their  possession,  and  the  same  to  talie  to 
and  set  up  in  the  mill  occupied  by  them  in 
Beacon  FaUs,  asreeinK  to   keep  the  same 
in  Kood  order,  and  also  to   keep  the  same 
insured   for  the   full   cost  of  the  same  for 
thebenehtof  the  party  of   the   first  part, 
and   to   hold    the  said    machinery  as   the 
property  of  the  party  of  the  first  part  un- 
til   the    above    note  or  renewals   thereof 
have  V)een   fully   paid,   according    to    the  i 
tenor  thereof,  when  the   machinery  above 
named   shall   be  sold   to  and   become   the 
property  of  the  party  of  the  second    part. 
And  the  party  of   the  first   part  is  hereby 
bound  to  sell'and   relin<iuisli  his   claim    to 
said    propertv  \ipon    ijayment  of   the  said 
note  or  renewals   thereof,  and    does  agree 
to  consider  the  same  as  sokl  and  delivered 
when  said   note   or   renewals   thereof  are 
paid.     And  it  is  further  agreed  that   upon 
default  of  the  payment  of  the  said  note  or 
renewals  thereof  when  the  same   shall   be- 
come due,  as   also   in   default  of   said  ma- 
chinery being   kept  in  good  order  and    in- 
sured as  above  provided,  the  party  of   the 
first  part  shall  have  the  right  at  any  time 
to  resume  i)ossession   of    the   machinery, 
and  to  enter  the  premises  and  remove  the 
same  as   his   own   property.     And,  if   any 
portion  of  said   note  or  renewals  thereof 
shall  remain  unpaid  when  possession  shall 
be  so   taken  by  the  party  of   the  Hrst  i)art 
or  his  authorized   agent,  then  the  amount 
which  ninv  have  been  paid  shall  be  for  the 
use  of  said    machinery  while  in  possession 
of   the  party  of  the  second  part,  and  said 
notes  shairthen  be  canceled  and  given  up. 
Witness  the  hands  and  seals  of  the  parties 
aforesaid.      Gi;or(ji;     Cuo.mi'To.n.     [l.   s.] 
Chas.  M.  Bi^acu,  Treasurer,     [l.  s.]  " 

H.  C.  Uohiiison  and  L.  1\  Robinson, 
for  ai>pellant.  F.  Cbamhi-rlin  and  E.  6'. 
Whjtt',  for  appellee. 

I.ooMis  .7.  The  sole  question  forour  de- 
termination is  whether  the  promissory 
note  described  in  the  linding,  dated  Janu- 
ary 15, 18.^7,  giveu  by   the  Home  W  ooleu 


Mills  Company,  payable  six  nionthB  after 
date,  to  Mary  Crompton,  administratrix 
of  George  Crompton,  deceased,  is  a  good 
and  collectible  note.  The  commissioners 
on  the  assigned  estate  of  the  maker,  now 
an  insolvent,  allowed  the  claim  in  full, 
and  their  doings  were  aflirmed  by  the  su- 
perior court  upon  an  appeal  by  a  creditor. 
Although  numerous  errors  are  assigned  as 
reasons  for  the  ai)peal  to  this  court,  yet 
the  controlling  question  as  it  seems  to  us 
relates  wholly  to  the  consideration  of  the 
note,  and  the  remedy  of  the  plaintiff  for 
default  of  payment.  The  note  in  suit  is  a 
renewal  of  the  one  mentioned  in  thcrcon- 
tract  dated  March  3.  isw,  given  to  George 
Crompton  by  the  Home  Woolen  Company, 
pursuant  tothe  provisions  of  thecontract, 
and  a  determination  of  the  questions  rela- 
tive to  the  consideration  and  collectibility 
of  the  note  will  involve  also  the  construc- 
tion of  the  contract. 

No   question   is   made  as   to   the  valid- 
ity of  the  transaction.     It  belongs  to  the 
class   of  executory    conditional    sales    so 
often  sustained  by  the  courts  of  this  and 
other  jurisdictions,   even    against  attacli- 
ing    creditors.     But    the  cpiestion  here  is 
between  the  parties,  and  those  who  imme- 
diately represent  them.     If  then,  as  Hoi.T, 
C.  J.,  so  forcibly  said  in  Thorpe  v.  Thorpe, 
1  Salk.  171,  "every  man's  bargain  ought 
to    bo    performed    as    he    intended     it," 
we  cannot  refrain  from  asking  at  the  out- 
set why  should  not  the  absolute  promise 
contained  in  this  note  be  performed?   Was 
it  in  its  ino'ption  a  mere   nwliini  pactum. 
lacking  the  re(iuisites  of  a  legal  obligation 
to  perform,  or  has  there  since  been  a  fall- 
'  ure  of  the  consideration?      Unless  it  is  all 
a  mere  waste  of  words,  i)aper,  and  ink,  a 
good  consideration  is  found  in  the  mutual 
obligations  which   the  contract   imposed 
upon     the   parties.     Under   it    the   Home 
Woolen  Company  had  the   possession,  the 
right  of  possession,  the   riglit    to    use   the 
propertv,  until   default,  and   the  right  to 
acquire 'the  legal  title  by  the  payment  of 
the   note.     This   was   a  vested   interest  of 
which  the   vendee  could   not  be  deprived 
except  after  default.     Moreover,  it  was  an 
attachable  interest   under  section    t):.'0  of 
the  General  Statutes.     The  vendee  or  any 
of  itsattaching  creditors  could  compel  the 
vendor  to  give  a  good    title.     In   other  ju- 
risdictions the  doctrine  is  well  established 
that  such   contracts   vest   an   interest   in 
the   vendee   which    is    cajiable  of  sale   or 
mortgage  bv  him   to   a  third   person,  so 
that  the  moment  the  vendee's   title  is  per- 
fected   it  passes  to    such     third     person. 
Fosdick  V.  Schall,  99   U.  S.  1.'35:  Carpenter 
V   Scott,  13   K.  ].  477;  Day    v.  Bassett,  l!!2 
Mass.  445:  Crompton  v.  I'ract,   lOo   Mass. 
".").■)•    Currier    v.    Knapp.    117    Mass.    3l'4; 
Chase  V.    Ingalls,   V.'J   Mass.  3s3;  note   to 
Miller   v.   Steen,  89  Amer.  Dec.   IL'S.     The 
case  at  bar  Is  most  remarkable  in  the  fact 
that,  while  the   appellant  claims   a  want 
or  failure  of  consideration  for  the  note,  he 
at  the  same  time  concedes    that  there  has 
been  no  default  in  any  of  the  vendor's  ob- 
li"-ations   mentioned   in  the  contract,  nor 
has  possession   of   the  looms  bi^n   taken 
bv  the  vendor  or  his   representative,  nor 
has  there   been   any   interruption   or  dis- 
turbance of  the  vendee's   possession.     But 
strangely  enough  the  failure  of  cousidcra- 


as 


BEACH'S  APPEAL. 


tion  is  prodicnted  solely  upon  the  default 
of  the  veiiilee  to  perform  his  own  promise 
— the  same  party  who  sets  up  the  defense! 
That  such  maybe  the  consequence  of  a 
party's  own  defaiilt,  we  concede  as  a  pos- 
sibility, but  only  where  it  is  so  written  in 
the  contract,  and  such  intent  is  manifest. 
And  here  counsel  for  the  appellant  say, 
in  effect,  that  the  decisions  of  this  court 
in  Hine  v.  Roberts,  48  Conn.  L'07,  and 
Loomis  V.  Bragg,  50  Conn.  228,  where  Cf)n- 
tracts  said  to  be  essentially  the  same  as  in 
thecaseat  barvvere construed  soaeto  give 
the  precise  effect  to  the  vendee's  own  de- 
fault, coupled  with  his  act  of  returning  the 
property,  which  we  now  characterize  as  so 
anomalous.  But  the  appellant's  argument 
as  based  on  the  cases  cited  overloul>s  sev- 
eral most  important  and  controlling  dis- 
tinctions. In  the  first  place,  the  court 
there  was  not  called  upon  to  give  effect  to 
the  sole  default,  and  the  sole  act  of  the 
vendees  in  returning  the  property  after  de- 
fault, for  in  both  cases  these  acts  of  the  ven- 
dees were  coupled  with  the  corresponding 
acts  of  the  vendors  in  accepting  and  tak- 
ing back  the  property  which  they  had 
conditionally  sold.  This  of  itself  consti- 
tuted a  failure  of  the  consideration,  and 
had  the  looms  in  this  case  when  tendered 
been  accepted  and  appropriated  by  the  ven- 
dor, the  vendee  would  be  no  longer  liable 
for  the  purchase  price.  The  gist  of  the  de- 
cision in  nine  v.  Roberts  appears  in  the 
closing  paragraph  of  tlie  opinion:  "Tiie 
purcha.se  failed ;  the  title  did  not  pass. 
The  ])laintiff  received  the  melodeon  and 
the  return  of  the  organ  in  good  condition, 
which  is  all  he  contracted  for  in  that  con- 
tingency, and  the  defendant  forfeits  all 
previous  payments  (in  this  case  the  melo- 
deon)  which  is  all  he  agreed  to  forfeit. 
There  was  therefore  an  entirefailureof  the 
consideration  for  the  note. "  But  it  is  said 
that  the  reasoning  of  the  court  in  this, 
and  in  the  other  case  referred  to,  supports 
the  right  of  the  vendees  to  return  the  prop- 
erty upon  their  own  default,  irrespective 
of  any  assent  on  the  part  of  the  vendors 
arising  from  their  acceptance  of  the  prop- 
erty when  returned.  This  is  true,  and  nat- 
urally occasions  some  hesitatifjn  as  to  the 
proper  decision  of  this  case.  But  the  rea- 
soning referred  to  was  based  upon  a  con- 
struction of  those  contracts  whereby  it 
was  expressly  provided  that  the  vendees' 
default  of  payment  slKjuld  work  a  forfeit- 
ure of  their  entire  Interest  in  the  property. 
In  Hine  v.  Roberts  the  very  words  which 
the  vendee  used  in  his  contract  were: 
"If  I  fail  to  pay  any  of  said  rent  when 
due,  »  »  «  all  my  rights  herein  shall 
thereupon  expire  and  terminate;"  which 
seems  to  justify  the  reasoning  and  conclu- 
sion of  the  court.  In  Loomis  v.  Bragg  the 
same  construction  was  given  to  the  con- 
tract, although  the  language  was  less  ex- 
plicit. In  the  opinion  of  thecourt,  on  page 
231,  it  is  said  that  the  agreement  provided 
forthe  contingency  of  a  default  of  payment 
by  the  vendee  "by  a  forfeiture  of  all  the  de- 
fendant's rights  under  Che  contract."  In 
the  case  at  bar,  as  it  seems  to  us,  no  such 
construction  can  reasonably  be  given,  for 
there  is  no  express  provision  as  in  Hine  v. 
Roberts,  and  none  can  be  implied  from  the 
language  used,  as  in  Loomis  v.  Bragg, 
that  the  vendee  can  determine  his  interest 


in  the  property  and  revest  it  in  the  vendor 
bv  his  own  default  merely.  The  option  to 
give  such  an  effect  to  a  default  rests 
wholly  in  the  vendor,  and  the  vendee's 
rights  continue  until  the  option  is  exer- 
cised. The  mere  absence  of  any  provision 
in  the  contract  as  to  a  return  of  the  prop- 
erty by  the  vendee,  while  expressly  confer- 
ring on  the  vendor  the  right  to  reclaim  it, 
of  itself  affords  ground  for  an  implication 
against  the  existence  of  any  such  right, 
but  in  this  case  it  is  expressly  stated  to 
be  the  duty  of  the  vendee"to  hold  the  said 
machinery  as  the  property  of  the  party 
of  the  first  part,  until  the  above  note  or 
renewals  thereof  have  been  fully  paid  ac- 
cording to  the  tenor  thereof." 

This  case  belongs  to  the  class  of  which 
Appleton  V.  Library  Corp. ,53  Conn.  8,  is  the 
type  rather  than  to  that  of  Hine  v.  Rob- 
erts and  Loomis  v.  Bragg,  and  the  lan- 
guage of  the  court  in  that  case,  in  refer- 
ence to  the  claim  of  a  right  in  the  defend- 
ant to  return  books  similarly  bought,  is 
equally  applicable  to  this  case.  The  court 
there  say:  "It  is  said  that  the  plaintiffs 
had  the  right,  at  their  option,  to  retake  the 
property  at  any  time  if  the  defendants 
should  fail  to  pay  any  installment  for  a 
period  of  thirty  days  after  it  became  due; 
but  this  is  a  right  which  the  plaintiffs  had 
in  case  the  defendants  should  break  the 
contract  by  non-pa.ynient.  It  gives  the 
defendants  uo  right  to  return  the  books." 
But  it  is  suggested  that  the  present  case 
is  like  Hine  v.  Roberts  and  Loomis  v. 
Bragg  in  that  no  remedy  except  the  right 
to  resume  possession  is  given  to  the  ven- 
dor, and  that  it  is  unlike  Appleton  v.  Li- 
brary Corp.,  in  that  there  is  no  absolute 
promise  to  pay  for  the  looms,  as  there 
was  to  pay  for  the  books  in  that  case. 
While  we  concede  that  there  is  some  plau- 
sible ground  for  these  distinctions,  upon 
further  reflection  we  find  them  unsatisfac- 
tory. In  the  first  two  cases  the  payments 
stipulated  to  be  made  at  frc(iuent  inter- 
vals were  called  "  rent, "  and  the  agree- 
ments were  called  "leases,"  and  although 
this  court,  taking  into  view  the  features 
of  the  entire  transactions,  called  them 
"conditional  sales"  and  not  "leases,"  yet 
the  use  of  these  words  by  the  parties  cer- 
tainly has  a  legitimate  bearing  upon  the 
construction  of  the  agreements  as  to  the 
point  now  under  consideration,  namely, 
whether  the  parties  intended  to  give  the 
vendors  a  remedy  to  recover  the  entire 
sum  stipulated  to  be  paid  as  a  condition 
for  vesting  the  title  in  the  vendees.  In 
both  cases  also  we  find  most  ample  pro- 
visions for  the  protection  of  the  vendors. 
In  Hine  v.  Roberts  a  large  advance  pay- 
ment was  made  by  delivery  to  the  vendor 
of  a  nielodeon,  worth  nearly  one-third  the 
price  of  the  organ.  In  Loomis  v.  Bragg 
the  payment  of  a  monthly  rent  was  re- 
quired, many  times  larger  than  the  inter- 
est upon  the  full  price  of  the  piano  which 
was  the  subject  of  the  sale.  But  in  the 
case  at  bar  the  contract  requires  no  ad- 
vance payment  and  no  rent  or  install- 
ments are  to  be  i)aid  either  at  long  or 
short  intervals.  The  word  "rent"  does 
not  (jccurin  the  writing,  audits  equivalent 
in  idea  only  appears  where  it  speaks  of 
the  consequences  of  a  retaking  of  posses- 
sion  by  the  vendor,  and  provides  for  the 


BEACH'S  APPEAL. 


30 


cancellation  of  the  notoH,  in  wlileh  case 
any  payments  that  may  have  bcon  made 
11  is  Raid  "  shall  be  for  the  use  of  the  ma- 
chinery while  the  vendee  was  in  posses- 
sion."  Even  interest  is  not  mentioned  in 
the  agreement,  yet  the  finding  shows  that 
it  was  in  fact  paid  in  advance  upon  givins: 
the  iiresent  renewal  note;  and.  upon  the 
supposition  that  the  entire  note  could  be 
collected  when  due.  the  vendor  had  it  in 
his  power  always  to  secure  the  prepay- 
ment of  interest  or  any  other  security  as 
a  condition  for  granting  a  renewal  of  the 
note.  But  the  first  note  that  was  given 
pursuant  to  the  contract  had  the  interest 
Included  with  the  i)rincipnl,  which  was 
due  at  the  end  of  eight  months,  so  that, 
had  the  question  tinder  discussion  then 
arisen,  the  appellant  could  have  claimed, 
consistently  with  his  present  position, 
that  not  even  the  interest  was  recovera- 
ble, for  its  payment  was  only  obligatory 
as  part  and  ijarcel  of  the  principal,  which 
could  not,  he  says. have  been  recoverecJ  hy 
suit;  but,  if  the  interest  could  have  bi'en 
or  could  l)e  recovered  apart  from  the  prin- 
cipal, it  would  be  a  very  inadequate  pro- 
tection to  the  vendor  for  the  risk  and  de- 
terioration fncident  to  the  use  of  such  ma- 
chinery by  another.  .\s  matter  of  com- 
mon knowledge,  we  may  safely  assume 
that  the  propertj'  in  question,  if  subjected 
to  only  ordinary  wear,  would,  if  taken 
back  by  the  vendor,  ne<-essarily  be  greatly 
depreciated  in  its  market  value,  for  it 
would  have  to  be  sold  again,  if  at  all,  as 
second-hand  machinery,  and  the  vendor 
must  inevitably  lose  the  whole  difference 
between  the  value  of  new  and  of  second- 
hand machinery,  which  in  an  investment 
of  over  ?12, 000,  as  in  this  case,  would  be 
too  serious  a  matter  to  be  lost  sight  of  in 
the  contemplation  of  the  i)artie8.  The  ap- 
pellant's construction  of  the  agreement 
woulil  put  upon  the  vendor  all  the  risks 
and  losses,  (of  which  there  are  many  be- 
sides those  mentioned,)  incident  to  the 
agreement  and  its  subject-matter,  and  at 
the  same  time  give  to  the  vendee  all  pos- 
sible benefits,  while  exempting  him  from 
all  obligations  exci'pt  such  as  he  might  be 
well  i)leased  to  fulfill.  It  is  incredible  that 
a  contract  so  one-sided,  and  a  remedy  so 
Inadequate  for  the  vendor,  should  have 
been  intended  by  the  parties.  Any  con- 
struction leading  to  such  results  ought 
not  to  be  accepted  unless  plainly  required 
or  necessarily  to  be  inferred  from  the  lan- 
guage of  the  contract.  We  think  the  con- 
tract in  this  case  admits  of  a  different  and 
more  reasonable  construction.  We  have 
already  seen  that  no  option  to  return  the 
property  is  given  to  tlie  vendee  merely  upon 
his  own  default,  which  has  an  important 
bearing  upon  the  qii("stions  whether  the 
parties  have  restricted  the  remedy  of  the 
vendor  solely  to  a  ret.-iking  of  the  proper- 
ty, and  whether  there  was  any  iiroinise 
by  the  vendee  to  pay  the  purchase  price. 
AVe  have  also  adverted  to  the  provision 
that  the  vendee  shall  holil  the  property  as 
that  of  the  vendor  until  the  note  and  its 
renewals  have  been  fully  paid,  which  indi- 
cates that  actual  payment  was  contem- 
plated; and  we  have  in  addition  the  note 
itself,  which  contains  a  direct  promise, 
without  condition  or  contingency,  to  pay 
the  purchase  price  of  the  looms;  and    this 


note  being  provided  for  in  the  contract, 
and  made  part  and  p;ircel  of  it,  ought  to 
be  read  as  if  inserted  in  the  body  of  the 
contract.  All  these  considerations  make 
it  reasonable  to  construe  the  agreement 
as  containing  an  absolute  promise  to  pay 
for  the  property  at  the  e.xpiration  of  the 
eiirht-months  credit  agreed  upon.  And 
this  brings  the  case  within  the  principle  of 
Appleton  v.  Library  Corp.,  where  thiscourt 
said:  "This  contract  is  an  alisolute  one. 
The  plaintiffs  agreed  to  sell  the  books  to 
the  defendants  for  the  sum  of  ninety  dol- 
lars, to  be  paid  in  installments  at  certain 
specified  times.  The  defer.dants  agreed  to 
pay  that  sum  according  to  the  terms  of 
the  contract.  There  is  no  conditional 
agreement  here.  It  is  true  that  the  title 
to  the  goods  did  not  pass,  and  could  not 
pass,  until  the  full  sum  of  ninety  dollars 
had  been  paid,  but  the  promise  to  pay 
that  sum  was  absolute.  Whence,  then, 
comes  the  defendants'  right  to  return  the 
books  in  full  satisfaction  and  discharge  of 
the  contract,  and  thus  leave  a  great  part 
of  the  installments  unpai<r?"  Ami,  speak- 
ing of  the  plaintiffs'  right  to  receiver  pos- 
session of  the  books,  the  court  further 
says:  "liut  this  is  not  their  only  remedy. 
The  contract  e.\i)ressly  further  provides 
that  in  case  of  such  breach  all  the  remain- 
ing unpaid  installments  shall  immediately 
become  due  and  payable.  If  they  become 
due  and  payable  in  consequence  of  non- 
payment, of  course  a  suit  could  be  main- 
tained for  their  recovery." 

Anotherquestion  involved  in  the  reasons 
for  the  appeal,  and  very  briefly  referred  to 
in  the  argument  for  the  appellant,  is 
whether  the  appellee,  by  bringing  a  suit 
on  the  note,  and  attaching  the  property 
of  the  vendee  thereon,  ami  by  refusing  to 
accept  the  property  when  tendered  back, 
and  by  presenting  thenote  to  the  commis- 
sioners as  a  claim  against  the  estate  of 
the  vendee,  thereby  affirmed  the  sale,  and 
waived  her  right  to  recover  back  the  prop- 
erty. The  counsel  for  the  appellee  insist- 
ed that  this  question  was  not  properly  be- 
fore this  court,  and  declined  to  argue  it. 
It  is  true  this  suit  is  not  for  the  recovery 
of  the  machinery,  but  only  for  the  recov- 
ery of  the  amount  of  the  note.  The  ven- 
dee has  not  been  disturbed  in  his  possession 
of  the  property,  and  it  is  not  certain  that 
he  will  be.  But  the  facts  referred  to  as 
to  the  conduct  of  the  appellee  all  appear 
on  the  record,  and  so  faras  they  affect  the 
right  to  recover  the  note  now  in  question 
the  matter  is  legitimately  before  the  court. 
.■\nd,  although  our  present  dtx-ision  must 
be  confined  to  the  claim  on  the  note,  yet 
the  note  and  the  ])roperty  may  have  such 
relations  as  that  the  principle  established 
as  to  the  former  may  virtually  determine 
the  question  as  to  the  property,  should  it 
hereafter  arise.  The  controlling  question 
in  the  present  case,  as  we  have  seen,  re- 
lates Pimply  to  the  consideration  of  the 
note.  If.  then,  the  action  of  the  plaintiff, 
astound  in  thiscase.  had  the  effect  to  affirm 
the  sale, and  pass  the  title  of  the  property 
to  the  vendiH'.  at  the  same  time  it  must 
have  prevented  a  failure  of  the  considi-ra- 
tion  of  the  note;  and  if  thetitle  did  pass  It 
follows  also  that  the  plaintiff  cannot  re- 
cover the  property  in  any  suit  founded 
upon  the  contract.    For  these  reasons  we 


40 


REACH'S  APPEAL. 


regret  that  the  question  was  not  fully  ar- 
Cned.  The  case  of  IJailey  v.  Hervcy,  135 
Mass.  172,  was  citefl,  and,  as  it  was  based 
on  a  contract  similar  in  effect  to  the  one 
under  consideration,  it  seems  to  be  direct- 
ly in  point.  The  action  was  brought  by 
the  conditional  vendee  ajAainst  the  ven- 
dors for  takinj:;  the  property  away,  and 
the  defendants  attempted  to  justify  under 
their  contract  after  default  of  payment 
was  made  by  the  vendee.  Ai.i.icx,  J.,  in 
delivering  the  opinio7i  of  the  court,  said: 
"  When  the  plaintiff  discontinued  his  [lay- 
ments  on  account,  what  w;is  the lep;nl  posi- 
ticn  of  the  defendants?  If  it  be  assumed 
that  they  mifjht  at  their  option  either  re- 
claim the  soods  as  their  own  property, 
without  any  obligation  to  account  for  the 
proceeds  or  value  to  the  (ilaintiff,  or  that 
they  mislit  collect  the  price  in  full,  it  is 
plain  that  they  were  not  entitled  to  do 
both.  Theycouldnottre.it  the  transac- 
tion as  a  valid  sale  and  an  invalid  one  at 
the  same  time.  If  they  reclaim  their  prop- 
erty, it  must  be  on  the  ground  that  they 
elected  to  treat  the  transaction  as  no  sale. 
If  they  brought  an  action  for  the  price, 
they  would  thereby  aflirm  it  as  a  sale. 
Two  inconsistent  cour-ses  being  open  to 
them,  they  must  elect  which  they  would 
pursue;  and  electing  one  they  are  debarred 
from    the   other.    Reclaiming   the  goods 


would  show  anelection  to  fr.rego  the  right 
to  recover  the  price;  but,  instead  of  re- 
claiming the  goods  in  the  first  instance, 
they  brought  an  action  against  Bailey  for 
the  price,  made  an  attachment  of  his  prop- 
erty by  trustee  process,  entered  their  ac- 
tion in  court,  and  he  was  defaulted."  To 
accept  this  as  good  law  would  be  to  es- 
tablish a  principle  which  would,  upon  the 
facts  found,  preclude  the  appellee  from 
hereafterreclaiming  the  machinery  In  ques- 
tion. And  while  we  feel  impressed  with 
the  clear  and  cogent  reasoning  contained 
in  the  opinion  cited,  and  are  aware  that 
it  may  receive  further  support  from  other 
decisions  to  the  same  effect,  yet  inasmuch 
as  the  point  was  not  argued  at  all  by  the 
appellee,  and  only  briefly  lor  the  a[)pel- 
lant,  and  as  its  adojjtion  would  only  fur- 
nish one  independent  additional  reason 
for  a  conclusion  already  reached  by  a  ma- 
jority of  the  court,  it  is  deemed  best  on  the 
whole  to  leave  the  question  open  for  fur- 
ther consideration  and  decision  after  full 
argument.  There  was  no  error  in  the 
judgment  comi)lained  of. 

Andrews,  C.  J.,  and  Pardee  and  Fe.\n, 
JJ.,  concurred. 

Carpenter,  J.,   delivered   a    dissenting 
opinion. 


HECKEK  V.  irAI.LGAUTEN. 


4.', 


BKCKEIi    V.   IIALL(JAUTE.\. 

(8C  N.  Y.  1C7.) 

Court  of  Appeals  of  New  York.    1881. 

AiHion  for  convcrHion.  Willielm  &  Boc- 
in'T.  iiifrt'linntH  In  Berlin,  (Jermnny,  Hold 
to  BouH  &  Stern,  of  the  same  place,  cer- 
tain RoodH  on  credit,  k'v'wk  tlieui  invoiced 
of  the  Hiune.  The  koo(Ih  were  Hhipped  b.v 
direction  of  the  purchfiHero  to  one  Becker, 
the  |)lnintiff,  in  Hrenien.  Boas  &  Slern 
borrowed  3,0(10  niarkH  of  one  GoldHteIn, 
a  hanker  In  Berlin,  on  the  security  of  the 
)j:oo(Ih  and  the  hills  of  lading,  directing 
J  Becker  to  hold  them  snhject.  to  Goldstein's 
order,  who  directed  Be<-ker  to  ship  them 
to  defendfintH,  Hallgarfen  &  Co.,  of  New 
York.  (joldstein  wrote  defendants  in- 
forming them  of  the  shipment,  and  direct- 
ed them  to  deliver  the  goods  to  one  L, 
Stern,  of  New  York,  on  pa.vment  by  hira 
of  the  Goldstein  loan  andexpenscs.  Beck- 
er shipped  the  goods  on  Angiist  4th  to 
defi-ndanis,  with  bills  of  lading  made  out 
in  his  name  as  ship[)er.  directing  deliver.v 
of  the  goods  to  defendants.  One  bill  of 
lading  he  mailed  to  defendants,  directing 
delivery  of  the  goods  to  E.  Stern,  as  in- 
structed by  <ii)ldstein.  The  dui)licnte  bill 
of  lading  was  forwarded  to  Boas  &  Stern, 
whosent  it  to (i<il(lstein,  wlio forwai'ded  it 
to  defendants,-directing  the  same  disposi- 
tion of  the  goods  by  them.  Becker  cabled 
defendants  on  August  I'.ith,  on  behalf  of 
the  vendors, stoppingthegoods  in  transit, 
and  they  agreed  to  hold  them  for  plain- 
tiff's account.  Tlw  vendors  afterwards 
assigned  to  plaintiff  their  clniniH  against 
the  purchasers  for  an  accepted  draft  and 
balance  of  account.  Under  the  hiwr<  of 
Germ.'iny,  goods  covered  by  bills  of  lading 
can  be  transferred  only  by  written  indorse- 
ment on  the  bills  b^-  the  consignee.  Those 
sent  to  defendant  were  not  indorsed. 
Plaintiff  tendiTed  defendants  theircharges, 
and  demanded  the  goods. 

Samuel  Hand,  for  appellants.  Lewis 
•Sanders,  for  respondent. 

DANFOBTII,  .1.  Becker  was  at  no  time 
In  the  course  of  these  transactions  the 
agent  or  representative  of  the  v<-ndors. 
Tntil  and  including  the  shipment  of  the 
goods  he  was  the  agent  of  Boas  &  .Stern, 
the  vendees,  or  of  (Jtildstein.  He  obeyed, 
as  was  i)roper,  at  the  different  stages  of 
the  affair,  first  one  and  then  the  other  of 
these  parties.  If  his  special  cliaracter 
censed  with  the  shijiment,  he  neither  en- 
tered the  em|)loy  of  the  vendors,  nor  did 
he  act  under  any  instruction  received  from 
them.  The  linding  therefore  thnt  in  be- 
half of  the  vendors  he  sto|iiied  the  goods 
is  without  evidence  to  support  it.  As- 
suming, in  the  next  place  (for  the  pur|tose 
only  of  thisdiscussion,)  that  by  the  assign- 
ment above  sot  out  he  tiecame  vested  with 
a  vendor's  right  to  stoit  goods  while  on 
their  way  to  an  insolvent  purcluiser,  it  is 
one  which  we  think  cannot  be  exercised 
in  this  case,  for  the  reasons:  First,  that 
the  transit  was  over  l)efore  the  goods  left 
(j'jrmany.  They  were  sent  by  the  vemlors 
to  Becker,  as  the  vendees'  agent  at    Brem- , 


en.  The  shipment  was  preceded  by  and 
was  in  ronsei)uence  of  a  reiiuest  l)y  B.  & 
S.  t(»  the  vcniiors  "to  send  the  boxes"  to 
Becker  "at  our  disposition."  Therefore, 
on  the  LNtli  of  .July.  Informing  B-cker  of 
the  shipment  to  him,  "at  the  reijuest  of 
and  for  account  of  .Messrs.  I'..  &  .S.  of  Ber- 
lin," they  write,  wo  have  sent  you  part  of 
the  goods  in  question  and  "reiiuest  you  to 
carry  out  the  further  instruction  of  said 
'  parties  concerning  the  same;  "  and  In  the 
'  next  letter,  communicating  the  shipment 
of  the  balance,  they  say, "and  requestyou 
hereby  to  let  .Messrs.  B.  &  S.  have  the  "fur- 
ther disposal  thereof."  It  is  obvious  then 
that  the  impulse  impressed  upon  thegoods 
by  the  vendors  carried  them  c»nly  to  Brem- 
en. Some  other  action  was  necessary  on 
the  part  of  the  vendees  before  they  moved 
again.  They  at  that  p<jint  transferred 
the  goods  to  Giddsteln,  and  made  them, 
in  the  hands  of  Becker,  subject  to  Ills  or- 
der. 'J"he  trial  court  finds  not  only  a  "tak- 
ing of  the  goo<ls  by  him  as  security,"  but 
that  Boas&  Stern  "directed  Beckertohold 
and  ship  the  goods  according  to  Gold- 
stein's directions. "  This  was  done.  The 
bills  of  lading  were  issued  in  favor  of 
strangers  to  the  vendees,  and  who  repre- 
sent a  part.v  having  actual  custody  and 
the  rif^ht  of  disposition.  The  shipment 
and  the  consignment  by  the  vendors  end- 
e<l  at  Bremen.  ,\t  that  place  new  interests 
attached,  in  promtition  of  which  thegoods 
Were  sent  forward.  The  only  consign- 
ment by  W.  &  B.  waH  to  Becker  at  Brem- 
en. 

It  has  been  held  that  the  delivery  to  the 
vendee,  which  puts  an  end  to  the  state  of 
I)nssage,  may  be  at  a  place  where  he 
means  the  goods  to  reninin  until  afresh 
destination  is  eomniiinicated  to  them  by 
orders  from  himself.  Valpv  v.  (iibsou,  4 
C.  B.  S.'!7;  Biggs  v.  Barry,  2  (urt.  l'5!l;  B«d- 
ton  V.  E.  &  Y.  K.  \V.  Co..  L.  B..  1  t'.  B.  4:5!). 
.'\lso  Dixon  V.  Baldwen,  5  East,  IV.'i;  and 
this  case  is  ai)proved  In  Covell  v.  Hitch- 
cock, 2:!  Wend.  Oil.  In  the  case  before  us 
it  i3  plain  that  they  had  reached  the  place 
for  which  thev  were  intended,  umler  the 
direction  given  by  the  vendors,  and  had 
come  under  the  actual  control  of  the  ven- 
dees. I)ix(m  V.  Baldwen,  supra,  is  com- 
mented upon  in  Harris  v.  Pratt,  17  N.  Y. 
21'.),  anil  distinguished  from  the  rule 
thought  applicalile  to  the  facts  of  that 
case.  There  the  suspense  in  trnnsiiorta- 
tlon  was  temporary,  and  to  be  resumed 
at  a  future  time  in  the  direction  already 
given  by  the  vendors.  But  in  the  case 
before  us  not  only  is  the  actu.il  fact  like 
that  in  Dixon  v.  Bald  wen.  but  lithe  de- 
tention at  Bremen  was  originally  Inteniled 
only  to  give  the  vendues  an  opportunity 
to  determine  by  which  of  several  routes 
or  at  wl.at  time,  as  in  Harris  v.  Pratt, 
the  goods  should  goon,  we  have  the  ad- 
ditional vital  circumstances  beforeadvert- 
ed  to  of  a  complete  possession  and  con- 
trol by  the  vendi-es  and  its  transfer  to  a 
third  party,  who  also  took  the  actual 
possession  anil  control  of  the  :rooils.  and 
lias  since  retained  them.  Neither  Harris 
V.  Pratt  nor  any  of  the  other  cases  cited 
by  the  apiiellani  no  to  the  extent  of  up- 
holding the  vendor's  lien  In  such  a  case. 
•  Second.  The  trau.sactiou    between  (Sold- 


44 


BECKER  0.  HALLGAETEN. 


Htoin  niid  tlie  vendees  was  effectual  to  pass 
Ihu  property  to  him  and  so  deprive  the 
vendors  of  the  right  of  Btoppano  if  it  otli- 
erwise  existed.  That  right  may  always 
lie  defeated  by  indorsing  and  delivering  a 
bill  of  lading  of  the  goods  to  a  bona  fide 
inilorseo  for  a  valnable  consideration, 
without  notice  of  the  facts  on  which  the 
right  of  stoppage  would  otlierwi.se  exist. 
This  was  hold  in  Lick  barrow  v.  Mason,  2 
T.  U.  (!o,  and  has  since  been  deemed  estab- 
lished. 11  iloes  not  impair  theforce  of  this 
poisition  that  the  money  was  in  fact  ad- 
vanced liefore  the  delivery  of  the  bill  of  lad- 
ing. The  goods  were  in  the  possession  of 
(ioUlstein  when  he  paid  over  the  money. 
Tlie  bill  of  lading  nas  promised  and  was 
part  of  tlie  consideration  on  which  the 
money  was  paid,  but  more  than  all  he 
had  the riglit,  under  theauthority  given  to 
him  by  B.  &  S.,  to  take  the  bill  of  lading 
in  anv  form,  and  it  was  made  out  for  his 
benefit.  City  Bk.  v.  H.  Co.,  44  N.  Y.  l;J6. 
Nor  is  it  material,  unless  made  so  by  the 
(ierman  law  (infra),  thiit  the  bill  of  lad- 
ing was  not  indorsed.  It  was  not  neces- 
sarj'  that  it  should  be.  Hallgarten  &  ('o. 
were  Goldstein's  agents,  subject  to  his 
control,  and  in  making  the  bill  of  lading 
in  their  names  as  consignees  all  waseffect- 
ed  which  the  indorsement  of  a  bill  taken 
in  the  name  of  1!.  vt  S.  would  have  accora- 
|)lished.  The  cases  cited  bv  the  respond- 
ent (Meyerstein  v.  Barber,  L.  R.,  2  C.  P.  45; 
Short  V.  Simpson,  1  id.  255),  show  that 
a  bill  HO  indorsed  has  the  same  effect,  even 
if  the  ship  containing  the  goods  was  at 
sea,  as  delivery  of  the  goods  themselves. 
Here  there  was  a  delivery  of  the  goods  to 
Goldstein,  and  the  bill  of  lading  followed 
the  possession. 

Third.  The  German  law,  as  set  out  in 
evidence,  has  no  application  to  the  ease 
in   baud.    It  applies  when  the  bill  of  lad- 


ing is  taken  in  the  name  of  the  vendee  or 
of  some  person  through  whom  the  party 
claiming  its  benefit  must  make  title.  Tlu' 
observations  already  made  show  that  in 
our  opinion  this  is  not  the  plaintiff's  po- 
sition. Nor  are  the  defendants  estopped 
from  disputing  the  plaintiff's  title.  There 
is  no  finding  of  any  fact  upon  which  such 
doctrine  can  i-est;  no  change  of  position 
by  the  plaintiff:  a  promise  at  most  by  the 
defendants  without  consideration,  in  vio- 
lation of  duty  to  their  principals  and  in 
fraud  of  their  rights.  If  it  forms  the 
foundation  of  any  action,  it  cannot  be  one 
the  effect  of  wliich  is  to  deprive  a  third 
party  of  his  property,  or  suliject  the  defend 
ant  to  a  second  action  by  the  real  owner 
of  the  goods.  The  right  of  stoppage, 
when  it  exists,  depends  upon  eriuity,  and 
that  of  the  defendants,  by  virtue  of  their 
representative  character,  is  superior  in 
any  view  to  the  plaintiff's.  If  liable  at  all, 
it  would  be  upon  their  assumpsit  to  keep 
the  goods  on  hisaccount.  But  what  dam- 
ages could  the  plaintiff  show  from  the 
breach  of  an  agreement  to  keep  for  him, 
or  subject  to  his  order,  goods  to  which 
another  person  was  entitled,  and  whose 
claim  was  as  to  liim  exclusive? 

Some  other  grounds  are  urged  by  the 
respondent  on  which  he  claims  the  judg- 
ment may  be  sustained.  They  have  been 
examined,  and  are  deemed  untenable.  The 
reasons  for  this  conclusion  need  not  be 
stated,  since  however  decided,  they  would 
be  insufficient  to  overcome  the  appellants' 
objections  which  have  been  already  de- 
clared well  taksn. 

The  judgment  appealed  from  should  l)e 
reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 

All  concur  except  FOLGER,  C.  J.,  absent 
from  argument. 

Judgment  reversed. 


BEMENT  V.  SMITH. 


47 


BEMENT  V.  SMITH. 

(15  Wend.  493.) 

Supremo  Court  of  New  York.    .Tuly  Term,  1S36. 

Tills  was  an  action  of  aHsumpsit,  tried 
at  tlie  Seneca  circuit  in  November,  183-1, 
before  tlie  Hon.  Daniel  MoHeiej',  one  of  the 
circuit  judges. 

In  March,  1K34,  the  defendant  employed 
the  piuintiff,  a  carriuKo  maker,  to  build  a 
Kulky  for  hitn,  to  be  worth  ten  dollarn 
more  than  a  sulky  made  for  a  Mr.  Put- 
nam ;  for  which  he  promiHod  to  pay  ?S0, 
part  in  a  note  aKaiuHt  one  .loseph  Bemeiit, 
a  brother  of  the  plaintiff,  for  the  Hum  of 
ten  or  eleven  dollarH,  and  the  residue  in 
his  own  note,  at  hI.k  or  twelve  montim,  or 
in  the  notes  of  other  persons  as  good  as 
hi.s  own.  In  .lune,  1834,  the  plaintiff  tojk 
the  sulky  to  the  residence  of  tlie  defend- 
ant, and  told  him  that  he  delivered  it  to 
him,  and  demanded  payment,  in  pursu- 
ance of  tlie  terms  of  the  contract.  The 
defendant  denied  having  agreed  to  receive 
the  carriage.  Wliereupon  the  plnintiff 
told  him  he  would  leave  it  with  a  Mr.  De 
Wolf,  residing  in  the  neighborhood  :  which 
he  accordingly  did,  and  in  July,  1834,  com- 
menced this  suit.  It  was  proved  tliat  the 
value  of  tlie  sulky  was  $80,  and  that  it 
was  worth  $10  more  than  Putnam's.  The 
declaration  contained  threesperialcouiitH, 
Hubstantiaily  alike,  setting  forth  the  con- 
tract, alleging  performance  on  the  part  of 
the  plaintiff,  tiy  a  delivery  of  the  sulky, 
and  stating  a  refusal  to  perform,  on  the 
part  of  the  defendant.  The  declaration 
also  contained  a  general  count,  for  work 
and  lalior,  and  goods  sold.  The  judge, 
after  denying  a  motion  for  a  nonsuit, 
made  on  the  aHsunied  grounds  <jf  variance 
between  the  declaration  and  proof, 
charged  the  jury  that  the  tender  of  the 
carriage  was  substantially  a  fullilnient  of 
the  contract  on  the  part  of  the  plaintiff, 
and  that  ho  was  entitled  to  sustain  his 
action  for  the  price  agreed  upon  between 
the  parties.  The  defendant's  counsel  re- 
quested the  judge  to  charge  the  jury  that 
the  measure  of  dnraages  was  not  the 
value  of  the  sulky,  but  only  the  expense 
of  taking  it  to  the  residence  of  the  defend- 
ant, delay,  loss  of  sale,  &c.  The  judge 
declined  so  to  charge,  and  reiterated  the 
instruction  that  the  value  of  the  article 
was  the  measure  of  damages.  The  jury 
found  for  the  plaintiff,  with  !?.83.2G  dam- 
ages. The  defendant  moved  for  a  new 
trial.  The  cause  was  submitted  on  writ- 
ten arguments. 

O.  H.  Piatt  and  .1.  F.  Stevens,  for  plain- 
tiff.    W.  K.  Smith,  for  defendant. 

By  the  court,  SAVAGI^,  Ch.  ,1.  The  de- 
fendant presents  no  defcmce  upon  the  mer- 
its. His  defence  is  entirely  ticlinical,  and 
raises  two  questions:  1.  Whetlier  the 
tender  of  the  sulky  was  equivalent  to  a 
ilelivery,  and  sustained  the  averment  in 
the  declaration  that  tlio  sulky  was  deliver- 
ed ;  and  2.  Whether  the  rule  of  damages 
should  be  the  value  of  the  sulky,  <ir  the 
particular  damages  to  be  proveil,  result- 
ing from  the  breach  of  the  contract. 
There  is  no  question  raised  here  upon   the 


[statute  of  frauds.  The  contract  is  there- 
fore admitted  to  be  a  valid  one;  and  relat- 
ing to  something  not  In  8(dido  at  the  time 
j  of  the  contract,  tliere  Is  no  question  of  its 
validity. 

The  [ilaintiff  agreed  to  make  and  deliver 
tile  article  in  question  at  n  partk-ulartime 
and  place,  and  the  defendant  agreed  to 
pay  for  It.  on  ilelivery,  in  a  particular 
manner.  The  plaintiff  made,  and.  as  far 
as  was  ill  liis  power,  delivered  the  sulky. 
He  offered  it  to  tlie  defendant  at  the  place 
and  within  the  time  agreed  nixm.  It  was 
not  the  plaintiff's  fault  that  the  delivery 
was  not  complete,  that  was  the  fault  of 
the  defendant.  There  are  many  cases  In 
whicli  an  offer  to  perform  an  executory 
contract  is  tantamount  to  a  performance. 
This,  I  apprehend,  is  one  of  them.  The 
case  of  Towers  v.  Osborne,  1  Strange,  506. 
was  like  this.  The  question  here  present- 
ed was  not  raised,  but  the  defendant  there 
sought  to  screen  himself  under  the  statute 
of  frauds.  The  defendant  bespoke  a 
chariot,  and  when  it  was  made,  refused 
to  take  it;  so  far  the  cases  are  parallel. 
In  an  action  for  the  value,  it  was  objected 
that  the  contract  was  not  binding,  there 
being  no  note  in  writing,  nor  earnest,  nor 
delivery.  The  objection  was  overruled. 
In  that  case  the  action  was  brought  for 
the  value,  not  for  damages  for  the  breach 
of  contract.  This  case  is  like  It  In  that 
particular;  this  action  is  brought  tor  the 
value,  that  is,  for  the  price  agreed  on: 
and  It  Is  shown  tliat  the  sulky  was  of  that 
value.  The  case  of  C'rookshank  v.  Bur- 
rell.  18  .lohns.  R.  58,  was  an  action  in 
which  the  plaintiff  declared  against  the 
defendant  on  a  contract  whereliy  the 
plaintiff  was  to  make  the  woodw!>rk  of 
a  wagon,  for  whicli  the  defendant  was  to 
pay  in  laiiitis.  Tliedefemlant  was  to  come 
for  the  wagon.  The  question  was  u|)oii 
the  statute  of  frauds.  Spencer,  I'h.  J., 
states  what  had  been  held  in  some  of  the 
English  cases,  Clayton  v.  Andrews.  4  Burr. 
-'1(11.  and  Cooper  v.  Elston,  7  T.  H.  14, 
that  a  distinction  existed  bet  ween  a  con- 
tract to  sell  goods  then  in  e.iistence.  and 
an  agreement  for  a  tiling  not  vet  made. 
The  latter  is  not  a  contract  for  the  sale 
and  purchase  of  goods,  but  a  contract 
for  work  and  labor  merely.  The  case  of 
C'rookshank  v.  Burrell  is  much  like  this, 
with  this  exception:  there  the  purchaser 
was  to  send  for  the  wagon :  here  the 
manufacturer  was  to  take  it  to  him. 
There  it  was  held  that  the  manufacturer 
was  entitled  to  recover,  on  proving  iliat 
he  had  made  the  wagon  according  to  the 
contract:  here  it  is  proved  that  the  sulky 
was  made,  and  taken  to  the  place  of  de- 
livery according  to  contract.  Tliemeiits 
of  the  two  cases  are  the  same.  It  seems 
to  be  conceded  that  an  aveniient  of  a  ten- 
der of  the  sulky  by  tlio  plaintiff,  and  a  re- 
fusal of  the  defendant  to  receive  It,  would 
have  been  sulllcient;  and  if  so.it  seems 
rather  twhnlcal  to  turn  the  plaintiff  out 
of  court,  when  he  has  proved  all  that 
would  have  been  required  of  hini  to  sus- 
tain Ills  action.  The  plaintiff,  in  his  spe- 
cial counts,  does  not  declare  for  the  sale 
and  delivery,  but  upon  the  special  con- 
tract; and  herein  this  case  is  distinguish- 
able from  several  cases  cited  on  the  part  of 


48 


BEMENT  V.  SMITH. 


the  ilefeiulnnt,  and  shows  that  It  was  not 
nuceasary  to  have  declared  for  goods  bar- 
gained and  sold.  It  seems  to  nie,  there- 
fore, that  the  judge  was  right  in  refusing 
the  nonsuit,  and  in  holding  that  tlie  evi- 
dence showed  sulistantially  a  fulfilment  of 
the  contract.  The  variance  as  to  the 
amount  of  Joseph  Bement's  note,  I  think, 
is  immaterial;  but  if  otherwise,  it  may  be 
amended.  The  alleged  variance  as  to  the 
price  of  the  sulky  is  not  sustained  by  the 
facts  of  the  case. 

The  only  remaining  question,  therefore, 
is  as  to  damages  which  the  plaintiff  was 
entitled  to  recover.  It  is  true  that  the 
plaintiff  does  not  recover  directly  as  for 
goods  sold;  hut  in  the  case  of  Towers  v. 
Osborne  the  plaintiff  recovered  the  value 
of  the  chariot,  and  in  Crookshank  v.  Bur- 
rell  the  recovery  was  for  the  value  of  the 
wagon.  The  amount  of  damages  which 
ought  to  be  recovered  was  not  the  ques- 
tion before  the  court  in  either  of  those 
cases;  but  if  the  value  of  the  article  was 
not  the  true  measure,  we  may  infer  that 
the  point  would  have  been  raised.  Upon 
principle,  I  may  ask,  what  should  be  the 
ruleV  A  mechanic  makes  an  article  to 
order,  and  the  customer  refuses  to  receive 
it:  is  it  not  right  and  just  that  the  me- 
chanic should  be  paid  the  price  agreed  up- 
on, and  the  customer  left  to  dispose  of  the 
article  as  he  may  ?  A  contrary  rule  might 
be  found  a  great  embarrassment  to  trade. 
The  mechanic  or  merchant,  upon  a  valid 
contract  of  sale,  may,  after  refusal  to  re- 
ceive, sell  the  article  to  another,  and  sue 
for  the  difference  between  the  contract 
price  and  the  actual  sale.  Sands  and 
Crump  V.  Tavlor  and  Lovett,  5  Johns.  K. 
3i).5,  410,  411;  Langfort  v.  Tiler,  1  Salkeld, 
113,6  Modern,  1()2.  In  the  first  of  these 
cases,  the  plaintiffs  sold  the  defendants  a 
cargo  of  wheat.  The  defendants  received 
part,  but  refused  to  receive  the  remain- 
der. The  plaintiffs  tendered  the  remainder, 
and    gave   n<jtice   that    unless   it    was   re- 


ceived and  paid  for,  it  would  be  eold  at 
auction,  and  the  defendants  held  respon- 
sinle  for  any  deficiency  In  the  amount  of 
sales.  It  was  held,  upon  this  part  of  the 
case,  that  the  subsequent  sale  of  the  resi- 
due was  not  a  waiver  of  the  contract,  the 
vendor  being  at  liberty  to  dispose  of  it 
bona  fide,  in  consequence  of  the  refusal 
of  the  purchaser  to  accept  the  wheat. 
Thiscase  shows  that  where  there  has  been 
a  valid  contract  of  sale,  the  vendor  is  en- 
titled to  tlie  full  price,  whether  the  vendee 
receive  the  goods  or  not.  I  cannot  see 
why  the  same  principle  Is  not  applicable 
in  this  case.  Here  was  a  valid  contract 
to  make  and  deliver  the  sulky.  The  plain- 
tiff performed  the  contract  on  his  part. 
Thedefendant  refused  to  receive  the  sulky. 
The  plaintiff  might,  upon  notice,  have 
sold  the  sulky  at  auction,  and  if  it  sold 
for  less  than  f SO,  the  defendant  must  have 
paid  the  balance.  The  reason  given  bv 
Kent,  t'h.  3.,h  Johns.  R.  411,  is  that  it 
would  be  unreasonable  to  oblige  him  to 
let  the  article  perish  on  his  hands,  and 
run  the  risk  of  the  insolvency  of  the  buy- 
er. But  If  after  tender  or  notice,  which- 
ever may  be  necessary,  the  vendor  chooses 
to  run  that  risk  and  permit  the  article  to 
perish,  or,  as  in  this  case,  if  he  deposit  it 
with  a  third  person  for  the  use  of  the 
vendee,  he  certainly  must  have  a  right  to 
do  so,  and  prosecute  for  the  whole  price. 
Suppose  a  tailor  makes  a  garment,  or  a 
shoemaker  a  pair  of  shoes,  to  order,  and 
perform.^  his  part  of  the  contract,  ie  he 
not  entitled  to  the  price  of  the  article  fur- 
nished? I  think  he  is,  and  that  the  plain- 
tiff in  this  case  was  entitled  to  his  verdict. 

The  question  upon  the  action  being  pre- 
maturely brought  before  the  expiration 
of  the  credit  which  was  to  have  been  giv- 
en, cannot  properly  arise  in  this  case,  as 
the  plaintiff  recovers  upon  the  special  con- 
tract, and  not  upon  a  count  for  goods 
sold  and  delivered. 

New  trial  denied. 


BENEDICT  V.  S('II  A  KTILE. 


51 


BENEDICT  V.  SOHAKTTLE. 

(12  Ohio  St.  515.) 

Snpreme  Court  of  Ohio.    Dec.  Term,  1801. 

Error  to  the  suporior  court  of  Cincin- 
nati 

Stallo  &  M'Cook,  for  |)laiiitiff  In  error. 
Keblei'  &  Force,  for  defendant  in  error. 

GHOLSON,  J.  According  to  the  deci- 
sion in  House  v.  Elliott,  (i  Ohio  St.  Hep. 
497,  which  applicB  in  ihiH  cnse,  we  can  not 
Inquire  aw  to  the  weight  of  evidence  on 
wliiuli  any  linding  of  fact  was  made  in  the 
court  below.  The  tlndinR  must  heauainst 
law.  Assuming  every  fact  which  the  evi- 
dence may  tend  to  prove,  In  support  of  the 
finding  and  judgim'ut  of  the  court  below, 
<lo  those  facts  fail  to  eHtaljIish  the  right  of 
the  plaintiff  in  the  action  to  recover?  We 
need  not.  therefore,  say  whether  there 
wai  Hutticient  evidence  toshowthat  .Johti- 
8on,  to  whom  the  goods  were  sold,  was 
insolvent.  There  was,  we  think,  evidence 
tending  to  show  the  insolvency  of  the  ven- 
dee at  the  time  of  the  sale  of  the  goods, 
and  that  such  insolvency  was  not  known 
to  the  vendor.  The  question  then  arises, 
whether  the  vendor,  on  afterwani  hear- 
ing of  the  insolvency,  may  exercise  the 
right  of  stoppage  In  transitu,  or,  whether, 
as  claimed  by  counsel  for  the  plaintiff  in 
error,  the  insolvency,  to  authorize  a  stop- 
page in  transitM,  must  be  evidenced  by 
some  positive  overt  act,  the  existence  of 
which  is  not  inferable  from  any  testimony 
In  the  1)111  of  exceptions,  and  that  such 
overt  act  must  occur  after  the  sale,  and 
before  the  delivery  of  the  goods? 

It  is  the  rule  of  the  mercantile  law,  that 
when)  goods  have  been  consigned,  and  are 
on  transit  to  the  vendee,  the  consignor  can 
not  vary  the  consignment,  except  In  the 
case  of  Insolvency.  It  has  been  said,  that 
"the  mischief  and  inconvenience  that 
would  ensue  on  a  contrary  supposition, 
are  extreme.  The  goods  might  be  put  on 
board, and  might  lie  at  the  risk  of  tliecon- 
Bignee  for  two  or  three  months;  and  if  the 
conMignor  could  come  and  resume  them  at 
pleasure,  it  would  place  the  consignee  in  a 
situation  of  great  disad  rantnge.  that  he 
sliould  be  exposed  to  the  risk  during  such 
a  length  o(  time,  for  an  object  whlcli 
miglit  be  eventually  defeated,  at  any  mo- 
ment, by  tlie  capricious  or  interesteil 
change  of  intention  In  the  breast  of  the 
consignor.  It  would  be  to  expose  the  con- 
signeo  altogether  to  the  mercy  of  the 
seller."  The  Constantia,  6  C.  Koh.  :i".'l- 
;i27.  In  that  case,  the  vendor  had  stopped 
and  diverte<l  the  ilelivery  of  goods,  and  It 
was  said,  if  the  vendee  "  ha(l  been  an  In- 
solvent person,  it  would  have  amounted 
to  a  complete  and  effective  revendication 
of  the  goods.  l?ut  if  the  person  to  whom 
they  are  consigned  is  not  Insolvent;  if 
from  misinformation  or  excess  of  caution, 
the  vendor  has  exercised  this  privilege  pre- 
maturely, he  has  assumed  n  riglit  that  did 
not  belong  to  him,  and  the  consignee  will 
be  entitled  to  the  delivery  of  the  goods, 
with  an  indemnilication  for  the  exjienses 
that  have  been  incurred.  *  *  *  It  Is 
not  an  unlimited  power  that  is  vested 
In  the  consignor,  to  vary  the  consignment 


at  his  pleasure  in  all  coses  whatever.  It 
is  n  privilege  allowed  to  the  seller,  for  the 
particular  purpose  of  protecting  him  from 
the  Insolvency  of  the  consignee.  Certainly 
It  is  not  necessary  that  the  person  should 
be  actually  Insolvent  at  the  time.  If  thn 
insolvency  happen  before  the  arrival,  It 
would  be  sullicient  to  justify  what  has 
been  done,  and  to  entitle  the  flhl|)per  to 
tli(!  benefit  of  his  own  provisional  caution. 
I5ut  If  the  person  is  not  insolvent,  the 
ground  is  not  laid  on  which  alone  such  a 
privilege  is  founded."  0  C.  Hob.  :)lMi.  In 
the  case  of  Wllmshurst  v.  Kowker,  '2  M.  & 
(i.  7!IJ,  S12,  It  was  said  by  Tinclnl,  (".  J  : 
"The  oi-dinary  right  of  counterniamling 
the  actu'il  delivery  of  gooils  shipped  to  a 
consignee,  is  llmiteil  to  the  cases  in  which 
the  bankruptcy  or  insolvency  of  the  con- 
signee has  taken  place.  'I'he  law  as  to  this 
point  is  very  clearly  laid  down  by  Lord 
Stowcll,  in  the  case  of  The  Constantia." 
This  statement  of  the  doctrine  of  stop- 
page in  transitu,  which  Is  supported  by 
sucli  high  authorities,  does  not  sustain 
the  proposition,  that  a  vendee.  Insolvent 
at  tlie  time  of  the  sale  of  goods,  and  still 
remaining  insolvent,  can  object  to  their 
stoppage  In  transitu.  He  could  only  com- 
plain when  his  insolvency  was  known  to 
thevendorat  the  timeof  sale,  and  the  con- 
tract was  made  in  view  of  such,  his  condi- 
tion. The  object  In  allowing  the  privilege 
to  the  vendor  being  his  protf-ction  against 
the  insolvency  of  the  vendee,  such  priv- 
ilege, unless  waived  by  the  vendor,  ought 
properly  to  exten<l  to  cases  of  insolvency, 
whether  existing  at  the  time  of  sale,  or 
occurring  at  any  time  belore  theactual  de- 
livery of  the  goods.  A  vendee  who  dis- 
putes the  right  of  stoppage  In  transitu, 
must  be  prepareil  to  aver,  as  in  the  case 
of  Wilnishnrst  v.  Howker,  '.'  M.  &  (J.  7'.t2, 
which  was  an  action  by  a  veixlee  against 
a  vendor  for  Improperly  stopping  the  de- 
livery of  goods,  that  he  was  neither  bank- 
rupt nor  insolvent.  Independently  of  any 
circumstances  to  the  contrary,  the  vendee 
might  have  the  benelit  of  a  presumption 
of  ability  to  comply  with  his  contract, and 
the  burden  of  showing  insolvency  might 
be  east  on  the  vendor.  It  may  be  that 
this  wouhl  be  sutJiclently  shown  by  the 
proof  of  an  overt  act  of  insolvency,  such 
us  a  stoppage  of  payment,  tnough,iu  fact, 
an  actual  insolvency,  in  the  sense  of  not 
having  means  ade(iuate  to  the  payment  of 
debts,  might  not  exist  If  the  \enrlee,  be- 
fore the  stoppag-»  in  transitu,  had,  by  his 
conduct  In  business,  nffordecl  the  ordinary 
apparent  evidences  of  insolvency,  he  ought 

not  to  complain  of  the  preciutlonary 
measure  taken  by  the  vendor,  though  It 
should  ttirn  out  that  he  was  ultimately 
able  to  |>ay.  Itnt.  though  no  such  evi- 
dences   of    insolvency    should    pre le    the 

Htoppago  in  transitu,  still,  if  the  fact  of 
insolvency  existed  the  vendee  ought  not 
tocom()laln.  This,  at  least,  is  clearly  to 
be  Inferred  from  the   language   of   the   au- 

:  thority  which  has  been  cited,  anil  appears 
entiiely  reason.'ible  anil  proper.  Fair 
dealing  will  be  better  insured  liy  leaving  to 
the  vendor  his  privilege  of  stoppage  In 
transitu,  in  all  cases  of  Insolvency,  wheth- 
er evidenced  by  the   ordinary  accompnny- 

i  ing  acts,  or  shown  actually  to  e.vlst.    The 


.'i2 


BENEDICT  0.  SCHAETTLE. 


riglits  of  a  fair  vendee  will  be  Riifflciently 
protected  by  g'w'ing  liim  an  indemnity 
when  the  lijil't  of  stoppage  in  transitu  is 
exercised  ui)on  ruiuor  or  suspicion  with- 
out any  fDUndation  in  fact,  and  by  depriv- 
inj?  the  vendor,  in  nil  cases,  of  any  chance 
of  speculating  upon  the  goods,  by  requir- 
ing them  to  1)6  delivered  or  accounted  for 
to  tlie  vendee,  or  his  assignee,  on  the  pay- 
ment or  tender  of  the  agreed  price. 

Tliese  views  are  sustained  by  the  origin 
and  nature  of  tlie  doctrine  of  stoppage  in 
transitu.  It  appears  to  have  been  derived 
from,  or  to  be  analogous  to,  the  revendi- 
cation  of  the  civil  law.  This  has  been 
thus  defined  :  "  Hevendication  is  the  right 
of  an  unpaid  vendor,  upon  the  insolvency 
of  the  vendee,  to  reclaim,  in  specie,  such 
part  of  the  goods  as  remains  in  the  hands 
of  the  vendee  entire,  and  without  having 
changed  its  quality."  (In  re  Westzyn- 
thius,  2  Nev.  &  Man.  6,")0,  note.)  In  Hell's 
Commentaries  on  the  Laws  of  Scotland, 
cited  in  the  same  case,  it  is  said:  "The 
privilt-ge  to  stop  goods  in  transitu,  is  a 
qualified  extension  in  equity  of  that  rule 
of  mutual  contract,  by  which, either  party 
may  withhold  performance,  on  the  other 
becoming  unable  to  perform  his  part."  It 
is  stated,  as  a  rule  introduced  into  the 
common  law,  in  modern  times,  founded  on 
prlnci|)lesofe(iuitv,  and  borrowed  from  the 
foreign  or  continental  law,  that  in  case 
of  the  vendee's  bankruptcy  or  insolvency, 
the  vendor  might  stop  and  take  bacli  the 
goods  in  transitu,  or  before  tlieycome  into 
the  hands  of  the  vendee.  Bell's  Comm. 
bk.  2,  pt.  2,  c.  1,  art.  3,  cited,  2  Nev.  & 
Man.  651, (io2, note;  Mackreth  v.  Symmons, 
15  Ves.  34.^.  It  is  "nothing  more  than  an 
extensinn  of  tlie  right  of  lien,  which,  by 
the  common  law,  the  vendor  has  upon  the 
goods  for  the  price,  originally  allowed  in 
equity,  and  subsequentl.v  adopted  as  a  rule 
of  law."  Rowlev  v.  liigelow,  12  I'ick.  307, 
313;  Atkins  v.  Colby,  20  N.  H.  1,J4;  Croat 
V.  Hill,  4  Cray,  301.  "A  kind  of  equitable 
lien  adopted  b.v  the  law  for  the  pur|)oses 
of  substantial  justice."  Hodgson  v.  Loy, 
7  T.  R.  445.  In  the  ease  of  McEwan  v. 
Smith.  2  Ho.  L.  Cas.  30i),  32S,  it  was  said, 
by  Lord  Campbell,  that  "  the  doctrine  of 
stoppage  in  transitu  is  a  most  just  and 
equitable  one,  and  I  would  by  no  meaus 
strive  to  limit  its  operation." 

If  the  true  principle  of  the  right  of  stop- 
page in  transitu  be  found  in  that  certainly 
just  rule  of  mutual  contract,  by  which 
either  party  may  withhold  performance, 
on  the  other  becoming  unable  to  perform, 
on  his  part;  if  the  foundation  of  the  rule 
be  a  just  lien  on  the  goods  for  the  price, 
until  delivered,  an  equitat)le  lien  adopted 
for  the  purposes  of  substantial  justice, 
then,  it  is  the  ability  to  perform  the  con- 
tract— to  pay  the  price — wliich  is  the  ma- 
terial consideration.  If  there  be  a  want 
of  ability,  it  can  make  no  difference  in 
justice  or  good  sense,  whether  it  was  pro- 
duced by  causes,  or  shown  by  acts,  at  a 
period  before  or  after  the  contract  of  sale. 
Substantially,  to  tlie  vendor  who  is  about 
to  complete  delivery,  and  abandon  or  lose 
his  proprietary  lien,  tlie  question  is,  can 
the  vendee  perform  the  contract  on  his 
part;  has  he,  from  insolvency,  become  un- 
able to  pay  the  price?    If  such   be  his  con- 


dition, and  the  vendor  has  not  precluded 
himself  by  some  act  of  waiver,  the  general 
principles  on  the  subject  and  justice  require 
that  he  should  be  allowed  to  exeicise  the 
right  of  stoppage  in  transitu. 

To  sustain  the  contrary  view  and  limit 
the  riglit  of  stoppage  in  transitu,  the  case 
of  Rogers  v.  Thomas,  20  Conn.  53,  is  relied 
on,  in  which  it  was  decided,  that  to  au- 
thorise the  exercise  of  the  right  of  stop- 
page in  transitu,  there  must  besomeovert 
act  of  insolvency,  and  tliat  it  must  inter- 
vene bet  ween  the  sale  and  tlie  exercise  of 
the  right.  The  decision  in  the  caseof  Rog- 
ers v.  Thomas,  was  not  made  on  the  au- 
thority of  previous  cases,  but,  in  the  ab- 
sence of  such  cases,  upon  the  ground  that 
the  general  definitions  or  statements  of 
the  doctrine  of  stoppage  in  transitu  re- 
quired such  a  limit  to  tlie  exercise  of  the 
right;  and  particular  reference  is  made  to 
the  general  statement  of  the  doctrine  in 
Smith's  Mercantile  Law,.547(Am.  Ed. 077). 
The  very  first  authority  cited  by  .Mr. 
S'uith  to  sustain  his  statement  of  the  doc- 
trine, is  the  case  of  VVilmshurst  v.  Bowker, 
and  he  quotes  the  remarks  of  Tindal,  <'. 
J.,  as  to  the  clearness  with  which  the  law 
on  the  point  had  been  laid  down  by  Lord 
Stowell  in  thecase  of  The  Constantia.  In- 
terpreting tlie  statement  of  the  doctrine, 
by  Mr.  Smith,  in  the  light  of  the  authori- 
ties he  cites,  and  it  is  manifest  that  he 
never  intended  any  such  limit  to  the  exer- 
cise of  tlie  right  of  stoppage  in  transitu. 
Nor  do  we  think  the  terms  in  which  the 
doctrine  of  stoppage  in  transitu  is  stated 
in  many  of  the  authorities,  would  justify 
the  limit  supposed  to  exist. 

It  was  said  by  Lord  Kenvon,  in  Ellis  v. 
Hunt,  3  T.  R.  407,  that  "the  doctrine  of 
stopping  goods  in  transitu  is  bottomed 
on  the  case  of  Snee  v.  Prescot,  1  Atk.  245, 
where  Lord  Hardwlcke  established  a  very- 
wise  rule,  that  the  vendor  might  resume 
the  possession  of  goods,  consigned  to  the 
vendee,  before  delivery, in  caseof  thebank- 
riiptcy  of  the  vendee." 

The  doctrine  is  thus  stated  by  Lord 
Hardwlcke.  After  referring  to  the  rule, 
that  an  action  against  a  carrier  for  loss  of 
goods  should  be  brought  in  the  name  of 
the  consignee,  he  proceeds:  "But  suppose 
such  goods  are  actually  delivered  to  a 
carrier,  to  he  delivered  to  A.,  and  whiie 
the  carrier  is  upon  the  road,  and  before 
actual  delivery  to  A.,  by  the  carrier,  the 
consignor  hears  A.,  his  consignee,  is  likel.v 
to  become  bankrupt,  or  is  actually  one, 
and  countermands  the  delivery,  and  gets 
them  back  in  his  own  possession  again,  I 
am  of  opinion  that  no  action  of  trover 
would  lie  for  the  assignees  of  A.,  because 
the  goods,  while  they  were  in  transitu, 
miglit  be  so  countermanded."  Snee  v. 
Prescot,  1  Atk.  24S. 

In  a  case  before  cited  it  is  said  by  Lord 
Campbell :  "  What  isstoppagein  transitu? 
It  is  this,  that  where  a  vendor  of  goods 
has  to  send  them  to  a  vendee,  and  has,  for 
that  purpose,  parted  from  them  to  a  car- 
rier, he  may,  upon  hearing  of  the  insol- 
vency of  the  vendee,  while  they  remain  in 
the  hands  of  the  carrier,  and,  before  deliv- 
ery to  the  purchaser,  stop  their  delivery." 
McEwan  v.  Smith,  2  Ho.  L.  Case,  32H. 

In  the  caseof  Donath  v.  Broorahead,  7 


BENEDICT  V.  .SCIIAETTLE. 


.3 


Itarr,  :501,  30."!,  it  in  nail] :  "Tlie  riulit  of  a 
vendor,  on  the  diHcovory  of  the  liank- 
rtii)tfy  or  iiiHolvenoy  of  the  party  tu 
whom  lie  liaH  wold  hockIh  on  iTcdir.  to  I'c- 
tnl<e  tiieni  hefore  actual  or  coniiilete  de- 
livery, in  tlie  well-Hettled  doctrine  of  both 
courtH  of  law  and  equity." 

lutliecaHeof  Hays  v.  .Mouille,  14  Pa. 
St.  48,  the  judt^e,  in  hiw  charue  to  the  jury 
(and  liiH  viewH  were  exprcsHly  adopted  hy 
the  court  of  error,)  after  stating  that  tlie 
innolvency  of  the  vendee  was  the  Kronnd- 
work  of  the  plaintiff's  claim,  thu.s  put  the 
(juepitlon  —  Was  the  vendee  "inMolvent 
when  these  noods  were  re|)levied  li.v  the 
plaintiffs?  It  is  not  necessary,  to  prove 
inscdvency,  that  he  should  have  been  de- 
clared a  bankrupt  or  insolvent  l>y  a  judi- 
cial tribunal,  nor  that  he  shoui<l  have 
made  an  assignment  of  his  property.  If 
the  fact  exist,  no  matter  how  proved,  if 
BUfficiently  and  satisfactcjrily  proved,  the 
la  w  re(iuires  no  more.  "  In  that  case  the 
evidence  tended  to  show  tliat  the  vendee 
was  insolvent  when  the  goods  were 
bought,  and  the  ju:lge  further  said  :  "You 
have  the  testimony  of  I'.aker  that  Khodes 
was  indebted  some  $tl(l,(l()0.  and  that  his 
assets  were  but  $!'(;, Odd,  aM<l  that  his  cred- 
itors were  watching  for  these  goods  on 
the  lino  of  transportation,  and  actually 
attached  them  before  they  reached  Ohio, 
for  det)ts  which  he  was  not   able  to  pay." 

In  the  case  of  Stevens  v.  Wheeler,  27 
Barb.  li.")S,  GUa,  there  is  this  statement  of 
the  rules  on  the  subject  of  stoppage  in 
transitu:  "tiiat  the  vendor  has  a  right 
to  stop  goods  sold  by  him,  when  he  dis- 
covers the  vendee  to  be  Insolvent,  at  any 
time  while  the  goods  are  in  transitu. 
That  tlie  transitus  continues  until  the 
goods  reach  the  place  of  destination,  un- 
less sooner  terminatccl  l)y  the  act  of  the 
vendee.  That  a  delivery  to  the  vendee  oJ 
the  goods,  or  a  part  of  them,  or  a  deliver.v 
to  his  agent  or  to  n  liona  tide  purchaser 
from  liim,  terminates  the  right  of  the  ven- 
dor of  the  goiids  to  stop  them." 

Not  only  do  the  general  statements  of 
the  doctrine  fall  short  of  sustaining  the 
decision  in  Itogers  v.  Thomas,  l)ut,  in  sev- 
eral cases,  where  the  question  was  in- 
volved, it  was  differently  decided.  Such, 
we  think,  was  the  case  of  Hays  v.  .Mouille, 
14  Pa.  St.  4S,  before  noticed.  There  it  is 
evident,  the  insolvency  existed  at  tlie  time 
of  thesaleof  the  goods,  and  it  was  proved, 
not  by  any  overt  act,  but  by  a  compari- 
son of  the  amount  of  liabilities  with  Hie 
amount  of  assets. 

The  decision  in  the  case  of  Buckley  v. 
Funiiss.  l."i  Wend.  1M7,  appears  to  lie  di- 
rectly opposed  to  that  in  Rogers  v.  Thom- 
as. In  Huckley  v.  Kurnis-i.  the  point  w;is 
made  that  the  vendor,  at  the  time  of  the 
sale,  knew  the  circumstances  of  the  ven- 
dee, who  was  then  insolvent.  It  was 
sui<l  liy  nronson,,!.:  "The  sale  was  no 
doubt  absolute,  whether  the  pl.iintiff 
knew  that  Titus  was  insolvent  or  not; 
and  so  are  most  sales,  where  the  vendor 
afterward  exercises  the  right  of  stoppage 
In  transitu.  The  right  of  the  vendor  to 
resume  possession  of  goods  sold  on  credit, 
In  case  of  the  insolvenc.v  of  the  consignee, 
before  they  come  to  his  hands,  does  not 
depend  upon    any  condition,  or    otiicr   pe- 


culiarity in  the  contract  of  sale,  but  pro- 
reeils  on  the  ground  of  an  equitable  lien. 
Still,  it  may  be.  and  prcdialily  is  true,  that 
ii  tim  iilaintirr  Hold  the  iron,  with  a  full 
knowledgi- of  tlie  situation  of  the  vendee, 
he  could  not  afterward  exercise  the  right 
of  stoppage  in  transitu;  but  the  argu- 
ment is  not  borne  out  by  the  facts."  Tlie 
judge  then  proceeds  to  show  liy  a  reference 
to  III"  facts,  that  although  the  vendee  was 
insolvent  at  the  time  of  the  sale,  it  was 
not  known  to  the  vendor,  who,  therefore, 
had  the  right  to  retake  the  goods.  This 
case  was  cited  by  eounsel,  in  Kogers  v. 
Thomas,  but  was  not  noticed  In  the  opin- 
ion of  the  court. 

There  are  other  cases  In  wliich  the  de- 
cision did  not  turn  on  the  question  of  In- 
solvency, the  contest  in  thin  class  of  cases 
having  generally  been  as  to  the  termina- 
tion of  the  transit;  but  where  it  appeara 
either  directly  or  l\v  strong  inference,  that 
the  insolvency  existed  at  the  time  of  sale. 
Such  n  case  is  Higgs  v.  Hurry,  2  CurtlH, 
2.59,  in  which  it  clearly  appears  that  the 
insolvency  existed  at  the  time  of  sale;  but 
the  case  was  given  to  the  jury  on  the  ques- 
tion, simply,  whether  the  transit  hud  end- 
ed, without  any  reference  to  the  time  of  in- 
solvency. 

In  the  cases  of  Stubbs  v.  Lund,  7  Mass. 
4.j3,  and  Ilsley  v.  Stubbs,  !)  Mass.  G.').  what 
was  regarded  by  the  court  as  the  sale  of 
the  goods,  their  shipment  on  order,  was 
after  the  insolvency  of  the  vendee,  and 
yet  the  exercise  of  the  right  of  stoppage  in 
transitu  was  sustained. 

The  point  might  have  been  made,  and  if 
sustiiined  would  have  clianged  the  deci- 
sion in  the  case  of  Litt  v.  Cowle.v,  I  Holt. 
.'j:!S,  :i  Eng.  Com.  L.,  13s,  as  is  shown  by 
Waite,  J.,  ill  his  dissenting  opinion  in  the 
case  of  Hogers  V.Thomas.  It  may  not 
be  conclusive  against  the  correctness  of  a 
legal  iiroposition,  that  it  was  not  pre- 
sented, wlien  from  the  facts  involved  it 
might  have  been.  But  when  this  has  oc- 
curred in  a  number  of  cases,  where  it  is  to 
be  supposed  that  both  counsel  and  court 
are  well  informed  as  to  tlie  rules  of  law.  it 
is  a  reasonalile  Inference  that  the  point 
was  not  made  because  it  was  deemed  un- 
teinible. 

We  have  not  been  able  to  And,  and  our 
attention  has  not  been  called  liy  counsel 
to  an.v  decision  which  sustains  the  restric- 
ti</n  on  the  right  of  stoppage  in  transitu 
laid  down  in  Kogers  v.  Thomas;  but  It 
has  been  adopted  as  a  rule  of  law  in  sev- 
eral elementnr.v  works.  It  appears  to  lie 
njiproved  in  1  Parsons  on  Contracts,  47ti, 
47S,  but  that  approbation  is  omitted  in 
the  work  of  the  same  author  on  Mercan- 
tile Law,  and  withdrawn,  and  a  grave 
doubt  substituted,  in  liis  more  recent 
work  on  .Maritime  Law.  1  Vol.  .11!'.). 

We  are  satislied  tliat  the  restriction  can 
not  lie  maintained  either  on  principle  or 
autliority. 

In  accordance  with  tlio  views  which 
have  iieen  expressi-d,  the  judgment  of  the 
superior  court  of  ('inciniiati  will  be  af- 
lirmed. 

Judgmeat  ntllrmed. 

SUTLIFF.  C.  .I.,and  PECK,  niHNKER- 
HOFF,  and  SCOTT.  JJ.,  concurred. 


BENNETT  v.  COOK. 


BENNETT  v.  COOK 
(6  S.  E.  Rep.  28,  28  S.  0.  353.) 

Supreme  Court  of  South  CaroUaa.    April  3, 

18S8. 

Appeal  from  coinraon  pleas  circuit  court 
of  Hampton  county;  HiulHon,  Ju<1«p. 

Action  liy  William  Hennutf.  adiniiiintrn- 
tor,  aKaiuHt  Joe  Cook,  to  obtain  poHscH- 
elon  or  certain  property  claimed  by  de- 
fendant BH  a  uift  from  the  inteHtate  in  his 
lifetime.  JuilKment  waw  rendered  in  fa- 
vor of  defendant,  and  plaintiff  appeals. 

W.  S.  TillinKliaHt  and  ,lameH  W.  Moore, 
for  appellant.  Searson  &  Warren,  for  re- 
Rpondent. 

MctiOWAN,  J.  Jamen  HuKhey,  hecom- 
InK  olfJ  and  infirm,  and  tindinj?  himself 
alone,  and  without  nny  one  of  IiIh  Inin)e- 
diate  family  to  take  care  of  liitii,  Hold  his 
little  tract  of  land,  and  went  t()  live  with 
the  defendant,  who  had  married  IiIh 
adopted  daughter,  to  whom  he  was  at- 
tached. Upon  the  occasion  of  his  removal 
he  seems  to  liavo  carried  with  him  a 
horse,  about  (iO  t)usliels  of  corn,  a  cun,  a 
few  ijleces  of  ol<l  furniture,  and  some 
notes,  amounting  in  value,  as  nlleued,  to 
about  $800.  He  was  received  and  treated 
kindly  by  the  defendant  and  his  wife. 
They  nursed  him  In  his  last  illness,  em- 
ployed an<l  i)ai(l  for  what  medical  atten- 
tion he  wanted;  and  in  about  six  miinths 
thereafter  he  died  intestate,  leavinK  his 
property  in  their  possession.  Soon  after 
the  death  of  tlie  intestate,  the  i)laintiff, 
who  had  married  a  daughter  of  the  de- 
ceased, applied  for  letters  of  administra- 
tion upon  the  estate,  and,  before  the  time 
had  ela[)sed  for  obtaining  full  letters,  he 
received  some  authority  in  the  nature  of 
letters  ad  colligendum  bona  to  >;ather  u]) 
the  goods  of  the  deceased,  and  sued  the 
defendant  for  the  aforesaid  [)roperty. 
The  defendant  answered,  claiming  title  to 
the  property  which  remained  l)y  parol 
gift  from  the  intestate  In  his  lifetime,  the 
Inducing  cause  or  consiileration  being  the 
love  and  affection  to  his  wife,  the  adoi)ted 
daughter  of  the  deceased,  and  the  services 
rendered  the  intestate  in  his  old  age  and 
helpless  condition  liy  thedefendantand  his 
wife.  It  was  referred  to  a  referee  to  take 
the  testimony,  much  of  which  consisted 
of  the  "declarations"  of  the  intestate  that 
he  "had  given,"  or  "inten<led  to  give,'" 
the  i)roperty  to  Uook  and  wife,  and  was 
taken  subject  to  exception.  It  is  all 
printed  In  the  brief.  The  cause  came  on 
to  be  heard  by  Judge  lluilson,  who  ruled 
that  all  the  testimony  of  both  the  jilain- 
tlff  and  defenilant  touching  transactions 
andcommunications  of  the  witnesses  with 
the  doceased  must  be  stricken  out,  under 
section  400  of  the  Code;  anil  that  all  the 
testimony  of  other  witnesses  in  behalf  of 
the  plaintiff  as  to  declarations  of  the  de- 
ceased in  support  of  his  title,  and  against 
the  gift,  must  also  be  stricken  out.  The 
judge  in  his  decree  says,  "after  eliminat- 
ing from  the  case  all  this  iiiccimpetent  and 
irrelevant  testimony,  and  aftci'  consider- 
ing the  other  testimony.  1  lin<l  that  the 
great  weight  of   the   evidence   is   in    favor 


of  the  title  of  the  defendant  and  wife, 
and  Is  agaitist  the  claim  of  the  plaintiff. 
•  *  •  1  find  as  matter  of  fact  that  the 
Intestate  at  the  time  of  his  death  did  not 
own  the  property  in  dispute,  having  giv- 
en the  same  to  the  defendant  and  his  wife, 
and  liencc  the  plaintiff  cannot  recover," — 
and  dismissed  the  complaint.  From  this 
decree  the  plaintiff  appeals  upon  excep- 
tiiins:  "(1)  ISecause  It  is  respectfully  sult- 
mitted  that  his  honor  erred  in  ruling  that 
all  the  testimony  of  witnesses  In  liehaK  of 
the  plaintiff  as  to  declarations  of  deceased 
in  support  of  his  title,  and  against  the 
gift,  must  be  stricken  out,  testiniony  of 
like  nature  In  support  of  the  gift  having 
been  previously  introduced  liy  defendant. 
(L'l  Because  his  honor  erred  in  llnding 
that  the  great  weight  of  the  evidence  is 
in  favor  of  the  title  of  the  defendant  and 
wife,  and  is  against  the  claim  of  the 
I)laintiff.  (3)  IJecause  his  honor  erred  In 
finding  that  this  case  is  similar,  in  the 
character  of  the  pjroof  of  the  gilt,  u>  the 
case  of  Blake  v.  .Jones.  Bailwy,  i;(|.  142,  it 
being  respectfully  submitted  that  there  is 
no  ijarallel  between  the  two  cases.  (4) 
Because  his  honor  erred  in  finding  that 
the  delivery  was  made  as  far  as  is  usual 
under  like  circumstances,  and  that  the  de- 
fendant an<l  wife  had  possession  of  the 
property  sufTicient  to  amount  to  a  deliv- 
ery. (5)  Because  his  honor  erred  In  find- 
ing that  the  iilnlntiff  gave  the  borsd  to 
defendant  and  wife  for  immediate  use  as 
their  horse.  (G)  Because  his  honor  erred 
in  finding  that  the  plalutiff  had  uo  right 
to  any  of  the  property  traced  to  defend- 
ant's possession,  and  named  In  the  com- 
plaint. (7)  Because  his  honor  erred  in 
finding  that  defendant  had  only  onedollar 
and  fifty  cents  in  his  possession  of  the 
money  of  the  Intestate,  and  that  he  had  of 
fered  to  turn  over  the  same  to  plaintiff.  (S) 
Because  his  honor  erred  in  deciding  that 
the  intestate  did  not  at  the  lime  of  his 
death  own  the  property  In  dispute:  that 
he  had  given  the  same  to  defenilant  and 
wife,  and  adjudging  that  the  complaint 
should  bedismissed.  "  There  are  no  rights 
of  creditors  in  the  case.  The  intestate 
seems  to  have  been  punctual  in  paying  his 
debts,  and  the  only  c<mtest  is  l)etweeu  the 
heirs  at  law  and  the  delcndant. 

The  general  rule  of  evidence  certainly 
is  that  declarationsareadmisslhle  against 
the  interest  of  the  party,  but  not  in  his 
favor.  "There  Is,  perhaps,  no  principle 
better  settled  than  that  when  one  has 
entered  into  a  contract,  made  a  gift,  or 
done  any  other  act  l)y  which  he  is  bound, 
he  cannot  by  any  subseciuent  act  or  dec- 
laration of  his  own  avoid  or  discharge 
himself  from  it.  if,  then,  the  gift  by  tliu 
testatrix  to  the  defendniifs  wife  was 
proved,  her  suliser|uent  declarations  wen>, 
upon  general  principles.  inadmissUile,  for 
the  obvious  reason  that  they  were  Irrele- 
vant. They  were  therefore  properly  le- 
jected.  Cases  do  sometimes  arise  in  wlHch 
proof  of  the  gift  is  made  up  of  repeatej 
declarations  of  the  donor.  running 
through  several  years ;  where  such  decla- 
rations are  brought  In,  by  the  party 
claiming  under  it,  in  support  of  doutttful 
evidence  of  the  gift.  In  these  and  such 
like    cases,   sue!;    declarations   are  admis- 


56 


BENNETT  p.  COOK. 


Hil)lf  in  I'oply  to  such  evidence.  The  case 
of  Sims  V.  Saunders,  Harp.  374,  is  au  illus- 
tration of  this."  M'Kane  v.  Bonner,  1 
Bailey,  IIG.  It  seems  that  in  respect  to 
alleKod  parol  sifts  proof  of  declarations 
of  the  donor  is  only  allowable  in  doubtful 
cases  upon  the  question  of  i^ift  or  no  gift, 
and  the  evidence  on  both  sides  consists  of 
declarations  of  the  allefred  donor.  The 
doctrine  is  clearly  exceptional  in  charac- 
ter, and,  as  it  trenches  closely  on  forbid- 
den ground, it  should  not  beaIlo«'ed  to  go 
l)eyond  the  necessity  of  the  case,  and  then 
be  received  with  great  caution.  "Where 
there  has  been  plenary  proof  of  the  gift, 
subsequent  declaration  of  the  donor  that 
a  gift  was  not  intended  is  inadmissible." 
M'Kane  v.  Bonner,  supra.  It  seems  that 
the  circuit  judge  was  entirely  satisfied, 
"from  the  great  weight  of  the  evidence," 
tliat  "plenary  proof  of  the  gift"  had  been 
made.  And  according  to  the  well-estab- 
lished rule  of  this  court  that  finding  of 
fact  will  not  be  disturbed  unless  it  is  against 
the  weight  of  the  evidence  which  we  have 
read  and  considered,  we  cannot  say  there 
was  erroi  of  law  in  excluding  the  subse- 
quent declarations  of  the  intestate  tend- 
ing to  controvert  the  gift  previously 
made. 

But  it  is  strongly  urged  upon  us  that 
there  was  no  sufficient  proof  of  gift  per- 
fected by  a  delivery;  that  the  whole  evi- 
dence taken  together  showed,  at  the 
most,  an  intention  to  give  at  the  death  of 
the  donor,  which  was  testamentary  in 
character  and  void,  as  being  in  conflict 
with  the  law  as  to  wills.  The  question 
whether  there  was  a  delivery  was  also 
a  question  of  fact  which  the  circuit  judge 
has  decided.  It  is  said,  however,  that  his 
view  of  what,  under  such  circumstances, 
would  constitute  a  legal  delivery  was  er- 
ror of  law.  There  is  no  doubt  that  a 
parol  gift  of  chattels  cannot  be  made  to 
take  effect  in  futuro.  To  constitute  a 
legal  gift  there  must  be  an  actual  or  con- 
structive delivery  of  possession  so  as  to 
confer  the  right  of  enjoyment  in  prsesenti. 
The  rule  seems  very  plain,  but  there  are 
so  many  kinds  of  personal  property,  and 
circumstances  are  so  various,  there  is 
often  no  little  difficulty  in  applying  it 
properly.  It  has  been  settled  that  it  is 
not  necessary  that  there  should  be  in  all 
cases  an  actual  manual  delivery.  The 
principle  is  stated  thus:  "Property  in  a 
chattel  cannot  be  transferred  by  a  parol 
gift  without  delivery ;  but  by  delivery  is 
not  meant  an  actual  manual  delivery  in  all 
cases,  but  any  circumstances  amounting 
to  a  clear  demonstration  of  the  intention 
of  the  one  to  transfer,  and  of  the  other  to 
accept,  and  which  puts   it  info  his  power,  I 


or  gives  him  authority  to  take  possession, 
isall  tluit  is  necessary,  and  is  afact  that  is 
left  to  the  jury."  Keid  v.Colcock.l  Nott& 
McC.  .592;  Banks  v.  Hattou,  Id.  221;  Blake 
V.  .Tones,  Bailey,  Kq.  141.  The  latter  case, 
as  remarked  by  the  circuit  judge,  "is  very 
similar  in  the  character  of  the  proof"  to 
this.  In  that  case  it  was  held  that, "  when 
a  donor  has  repeatedly  declared  his  inten- 
tion to  give,  his  subsequent  admissions 
that  'he  had  given,'  are  sufficient  evidence 
of  an  actual  delivery  to  complete  the  title 
of  the  donee  vrhen  it  does  not  appear  that 
the  declarations  were  loose  and  playful, 
and  particularly  when  the  donor  was  un- 
der a  moral  obligation  to  make  the  gift. " 
Indeed,  upon  the  i>oint  of  delivery,  this 
case  is  stronger  than  that  of  Blake  v. 
Jones,  for  there  the  slaves  recovered  by 
a  daughter  from  the  administrator  of  her 
father  were  never  in  the  actual  possession 
of  the  donee.  The  f.ither  had  said,  "When 
you  get  a  plantation,  I  will  send  them 
to  you,  and  in  the  mean  time  I  might  as 
well  pay  you  hire  as  any  one  else. "  While 
liere  the  property,  at  the  time  of  the  death 
of  the  alleged  donor,  was  already  in  the 
possession  of  the  person  claiming  as 
donee.  It  may  be  said  that  this  arose 
from  the  accidental  circumstance  that  the 
intestate  at  the  time  of  his  death  was  liv- 
ing with  the  defendant;  but  it  seems  to 
us  it  is  a  circumstance  entitled  to  some 
consideration,  at  least,  in  this*  that  at  the 
time  of  the  alleged  gift  there  was  no  occa 
sion  to  make  a  visible  transfer  of  the  pos- 
session, (the  usual  evidence  of  such  a  gift,) 
for  the  defendant  was  already  in  posses- 
sion in  a  general  sense. 

We  see  no  reason  to  except  the  "cream 
horse"  from  the  other  property.  It  ap- 
peared from  the  testimony  of  Weekly, 
Searson,  Shaffer,  and  others,  that  the  intes- 
tate,  three  or  four  weeks  before  his  death, 
said:  "I  have  moved  to  Joe  Cook's  for 
sometime.  I  don't  intend  to  live  by  ray- 
self  any  more.  All  I've  got  I  have  carried 
to  Joe  Cook's,  and  there  is  where  I  expect 
to  stay  until  1  die.  And  this  horse  I  have 
given  to  Joe  Cook  on  condition  that, 
when  I  want  to  ride,  he  is  my  horse,  and 
when  I  have  no  use  for  the  horse,  it's  Joe 
Cook's,  and  all  that  I  have."  "Where  the 
gift  of  a  slave  was  absolute  in  its  terms, 
and  accompanied  with  delivery  of  pos- 
session, held  that  the  reservation  of  a 
right  '  to  borrow  '  under  certain  circum- 
stances, or  to  receive  'something  like  hire' 
if  the  donor  should  stand  in  need,  was  a 
condition  subsequent,  and  did  not  inval- 
idate the  gift  although  made  by  parol," 
etc.    M'Kane  v.  Bonner,  supra. 

The  judgment  of  this  court  is  that  the 
judgment  of  the  circuit  court  be  affirmed. 


BENTALL  v.  BUUX. 


BENTAIJ,  pt   al.    v.   BlIKN. 

(3  Barn.  &  C.  423.) 

King's  Bench,   Michaelmas  Term.    Nov.  9, 
1824. 

AsHunipsit  foFKooils  barKalnud  and  sold 
and  c;()<)dH  sold  and  delivered  by  D.ver  and 
the  l(aiikru()tH  before  their  bankruptcy. 
TIiIh  waa  an  action  brought  to  recover 
£ri  148.,  the  price  of  a  hogshead  of  Sicilian 
wine  sold  to  the  defendant  by  the  bank- 
rupts, they  being  copartners  with  the 
other  plaintiff,  Dyer,  who  resided  in  Sicily. 
At  the  trial  before  Abbott,  C.  J.,  at  the 
London  sittings  after  last  Trinit.v  term. 
It  appeared  that  the  bankrupts  had,  on 
the  15th  of  February,  1(S22,  sold,  in  the 
name  of  and  on  account  of  the  linn,  to 
the  defendant  a  hogshead  of  Sicilian  wine, 
then  lying  In  the  London  docks,  at  the 
price  ol  £1.'!  14s.,  and  at  the  same  time  a 
delivery  order  and  invoice  were  made  out 
and  sent  to  the  defendant,  signed  by  the 
Hrni.  But  there  was  no  contract  in  writ- 
ing. On  the  nth  of  .June  the  defendant,  on 
being  applieil  to  for  payment,  said  that 
the  former  order  had  been  lost,  and  that 
the  wine  had  not  been  transferred  to  him 
in  proper  time,  and  he  had  consequently 
lost  the  sale  of  it;  that  he  had  not  been 
allowed  to  taste  it.  It  was  proved  that  a 
delivery  order  Is  given  where  the  wine  is 
intended  to  be  speedily  removed,  and  that 


I  the  party  receiving  It  may  get  tlie  goods 
mentioned  in  the  or<|pr  upon  producing  It 
at  the  London  docks  anil  paying  the 
charges,  which  are  always  deducted  from 
the  price.  Upon  this  evidence  the  lord 
chief  justice  was  of  opinion  that  the  ac- 
ceptance of  the  delivery  order  by  the  ven- 
dee was  not  ei|uivalent  to  an  actual  ac- 
ceptance of  the  goods  within  the  meaning 
of  the  statute  of  frauds;  and  he  directed  a 
nonsuit  to  be  entered,  with  liberty  to  the 
plaintiffs  to  move  to  enter  a  verdict  lor 
them  for  the  price  of  the  wine. 
Barnawall  now  moved  accordingly. 

PER  CURIAM.  There  could  not  have 
been  any  actual  acceptance  of  the  wine  by 
the  vendee  until  the  dock  company  accept- 
ed the  order  for  delivery,  and  thercl)y  as- 
sented to  hold  the  wine  as  the  agents  of 
the  vendee.  They  held  it  originally  as  the 
agents  of  the  vendors,  and  as  long  as  they 
continued  so  to  hold  it  the  property  was 
unchanged.  It  has  been  said  that  the 
London  Dock  Company  were  bound  by 
law,  when  required,  to  hold  the  goods  on 
account  of  the  vendee.  That  may  be  true, 
and  they  might  render  themselves  liable 
to  an  action  for  refusing  so  to  do;  but  If 
they  did  wrongfully  refuse  to  transfer  the 
goods  to  the  vendee,  it  Is  clear  that  there 
could  not  then  be  any  actual  acceptance 
of  them  by  him  until  he  actually  took  pos- 
session of  them.     Rule  refused. 


BIANCHI  V.  NASH. 


61 


BIANCHI  T.  NASU. 

(1  Meos.  &  W.  545.) 

Exchequer  of  Pleas,  Trinity  Terra,  18.3C. 

Debt  for  Roods  Bold  and  delivered. 
Pleu,  nunquani  indebitatus.  At  the  trial, 
before  tiie  under-sheriff  ot  Middlesex,  it 
appeared  that  the  plaintiff  wuh  h  dealer 
in  musical  snuff-boxes;  that  tliedefendant 
applied  to  him  to  let  (or  lend)  him  a  mu- 
sical snuff-box,  and  the  plaintiff  agreed  to 
do  HO,  on  the  understanding  that  the  de- 
fendant was  to  have  It  and  pay  for  It  if  It 
were  daraajied;  and  the  sum  ot  SAi  lOs. 
was  to  be  taken  as  its  value.  The  defend- 
ant received  the  snuff-box  on  this  under- 
HtandinK;  it  was  damaRcd  while  In  his 
possession;  and  the  plaintiff,  in  conse- 
quence, refused  to  receive  it  back,  and 
hroucht  this  action  for  the  price.  The 
under-sheriff  left  it  to  the  jury  to  say 
whether  the  agreement  was.  that,  in  the 
evenl  of  the  box  being  damaged,  it  was 
to  bj  a  sale:  an<l  they  found  that  that 
was  the  agreement,  and  gave  a  verdict  for 
the  plaintiff,  damages  £3  10s. 

F.  V.  Lee  obtained  a  rule  nisi  for  a  new 
trial,  on  the  groaud  that   this  was  a  mere 


bailment,  which  ought  to  have  been  de- 
clared on  specially,  and  that  there  wan  no 
evidence  to  support  the  count  for  goods 
Hold  and  delivered.  Chandless  ahowel 
cauBe.    F.  V.  Lee.  contra. 

Lord  ABINOKR,  C.  H.  1  think  there  la 
no  (luestion  at  all  on  the  general  principle 
applicable  to  this  case;  when  goods  are 
sold  on  condition,  and  the  condition  in 
IxTformed,  the  sale  bei-oines  alisolute. 
And  there  Is  as  little  duubt  on  the  evi- 
dence, that  this  was  a  conditional  sale, 
and  that  the  condition  was  performed. 
The  defendant  agrees  to  pay  the  price 
of  the  box  for  it,  in  case  be  damages  it. 

PARKE,  B.  There  was  clearly  evidence 
for  the  jury  that  this  was  a  contract  for 
a  conditional  sale;  and  it  was  a  very  rea- 
sonable contract.  Then  there  is  no  doubt 
that  the  value  was  recoverable  under  the 
count  for  goods  sold  and  delivered.  As 
soon  as  the  condition  is  performed,  It  l8 
an  absolute  sale.  The  other  barona  con- 
curred.   Kule  discharged. 1 

'  See  Studdy  v.  Sanders,  5  B.  &  C.  628. 


BILL  V.  BAMENT. 


C3 


BILL  V.  BAMENT. 

(9  Mees.  &  W.  36.) 

Eicheqner  of  Pleas,   Mirhaelmas  Term.    Nov. 
11.  184L 

AsBiimpslt  for  goods  sold  and  delivered, 
and  on  an  account  stated.  Plea,  non  ns- 
HumpHlt.  At  the  trial  before  Lord  AbinKer, 
C.  1!.,  at  the  London  BlttlnRS  after  Trinity 
term,  the  followine  faetH  appeared: — The 
defendant  ordered  of  one  Harvey,  who  was 
an  agent  of  the  plaintiff  under  a  del  credere 
conimlKHion,  n  quantity  of  goodw,  inelnd- 
ing  twenty  dozen  hair-hruHhea  and  twelve 
dozen  clothes-brushes,  to  he  paid  for  on 
delivery  at  a  stipulated  price,  but  nn  niein- 
oranduin  In  writing  of  the  bargain  was 
made  at  the  time.  On  receiving  notice  from 
Harvey  that  the  brushes  had  arrived  at 
his  warehouse,  the  defendant  on  the  'J2d 
of  March  last  went  there,  and  directed  a 
boy  whom  he  saw  there  to  alter  the  mark 
"  No.  1  "  upon  one  of  the  packages  to  "  No. 
12, "  and  to  send  the  whole  of  the  goods  to 
the  St.  Catharine's  Docks.  The  next  day 
an  Invoice  was  delivered  to  the  defendant, 
charging  the  brushes  respectively  at  the 
rate  of  Ss.  and  12s.  each.  The  defendant 
objected  to  this  price,  alleging  that  by  the 
contract,  as  he  had  understood  it,  the 
above  were  to  he  the  prices  of  the  brushes 
per  dozen,  and  refused  to  pay  for  them. 
On  the  24th  of  March  the  plaintiff  com- 
menced the  present  action  for  the  price. 
On  the  27th  the  defendant  at  Harvey's  re- 
quest wrote  in  Harvey's  ledger,  at  the 
bottom  of  the  page  which  contained  the 
statement  of  the  articles  ordered  by  the 
defendant,  nnd  which  page  was  headed 
"Bill  &  Co.,"  the  following  words:  "Re- 
ceived the  above,  John  Bnment."  The 
rest  of  the  goods  were  sent  to  and  received 
by  the  defendant.  It  was  objected  for  the 
defendant  that  there  was  no  evidence  of 
any  contract  in  writing,  or  of  any  accept- 
ance of  the  brushes,  sufficient  to  satisfy 
the  17th  section  of  the  statute  of  frauds. 
The  lord  chief  haron  reserved  the  point, 
and  the  plaintiff  had  a  verdict  for  the 
amount  claimed,  leave  being  reserved  to 
the  defendant  to  move  to  enter  a  nonsuit. 

Erie  having  obtained  a  rule  nisi  accord- 
ingly, Thesiger  and  Martin  now  shewed 
cause.  Erie  (with  whom  was  Whateley), 
contra. 

Lord  ARINCER,  C.  B.  If  the  question 
at  the  trial  had  turned  altogether  upon 
the  acceptance,  I  should  then  have  formed 
the  same  opinion  as  I  do  now.  I[i  order 
to  make  it  such  an  acceptance  as  to  satis- 
fy the  statute,  it  sliouid  appear  that  there 
was  a  delivery.  Here  Harvey  was  the 
plaintiff's  agent,  nnd  sold  for  ready 
money;  nnd  he  was  not  bound  to  deliver 
the  goods  until  payment  of  the  i)rice. 
Now  all  that  takes  place  Is  a  direction  by 
the  defendant  to  alter  the  mark  on  the 
goods,  and   to  send   them    to   the  docks; 


but  the  question  Is,  whether  this  was 
done  under  such  circumstances,  and 
Harvey  stood  in  such  a  situation,  as  that 
he  was  bound  to  send  them  to  the  docks. 
The  acceptance,  to  he  effectual  under  the 
statute,  should  be  such  as  to  devest  the 
property  In  the  goods  out  of  the  seller. 
Here  the  defendant  probably  niennt  to 
accept  iheni,  and  to  make  Harvey  his 
agent  for  shipping  them.  But  can  it  be 
said  that  he  was  his  agent  to  deliver  at 
all  events?  I  think  clearly  not.  He  was 
at  liberty  to  say  that  he  would  not  deliver 
to  or  ship  for  the  defendant  until  the 
goods  were  paid  for  There  Is  nothing  to 
shew  that  he  contracted  to  hold  them  as 
the  defendant's  agent,  or  by  implicallon 
to  make  him  Ills  agent.  Therefore,  for 
want  of  a  delivery,  there  was  no  sutlicient 
acceptance  of  these  goods.  The  rule  will 
be  ahcolute,  but  not  for  a  nonsuit,  as  It 
appears  that  some  goods  were  received  by 
the  defendant,  but  for  a  new  trial  on  pay- 
ment of  costs  by  the  plaintiff. 

PARKE,  B.  I  concur  In  thinking  that 
there  was  no  evidence  to  goto  the  jury 
to  satisfy  the  statute  of  frauds.  With 
regard  to  the  point  which  has  t>een  made 
by  .\Ir.  Martin,  that  a  memorandum  in 
writing  after  action  brought  is  sutlicient. 
It  is  certainly  quite  a  new  point ;  but  1  am 
clearly  of  opinion  that  it  is  untenable. 
There  must,  in  order  to  sustain  the  action, 
be  a  goodcotitract  in  existence  at  the  time 
of  action  brought;  and  to  make  it  a  good 
contract  under  the  statute  there  must  be 
one  of  the  three  requisites  therein  men- 
tioned. I  think  therefore  that  a  written 
memorandum,  or  part  payment  after  ac- 
tion brought,  is  not  sufficient  to  satisfy 
the  statute.  Then,  to  take  the  case  out 
of  the  17th  section,  there  must  he  both  de- 
livery and  acceptance;  and  the  (juestlon 
Is,  whether  they  have  been  proved  In  the 
present  case.  I  think  they  have  not.  I 
agree  that  there  was  evidence  for  the  jury 
of  acceptance,  or  rather  of  Intended  ac- 
ceptance. Thedirection  toranrk  thegoods 
was  evidence  to  go  to  the  jury  quo  animo 
the  defendant  took  possession  of  them:  so 
also  the  receipt  was  some  evidence  of  an 
acceptance.  But  there  must  also  be  a  de- 
livery ;  and  to  constitute  that  the  posses- 
sion* must  have  been  parted  with  by  the 
owner  so  as  to  deprive  him  of  the  right  of 
lien.  Harvey  miglit  have  agreed  to  hold 
the  goods  as  the  warehouseman  of  the  ile- 
feudant,  so  as  to  deprive  himself  of  the 
right  to  refuse  to  deliver  them  without 
payment  of  the  price;  but  of  that  there 
was  no  proof.  There  was  no  evidence  of 
actual  marking  of  the  goods,  or  that  the 
order  to  mark  was  assented  toby  Harvey. 
I  am  of  opialon  therefore  that  there  was  no 
sutlicient  proof  of  acceptance  tosntlsfy  the 
statute,  and  that  the  case  falls  within  the 
17th  section. 

UURNEi',  B.,nud  ROLFK,  B..  concurred. 

Rule  absolute  accordingly. 


BIRD  0.  MUNROE. 


65 


BIRD  et  al.  v.  MUNROE. 

(CG  Mo.  237.) 

Supreme  Judicial   Court   of   Maine.      May    20, 
1877. 

A.  S.  Rice  and  O.  G.  Hall,  for  plaintiflH. 
A.  P.  Gould  and  J.  E.  Moore,  for  dt'Iend- 
unt. 

PETERS,  J.  On  Mnrcfi  2,  lS74.at  Roek- 
Ijiiid,  in  tliis  stati",  the  (lefciidiint  con- 
inicted  verlially  vvilli  the  pluintiffH  for 
the  |iiirfliu8e  of  a  quantity  of  ice,  to  lie 
delivered,  (by  immediate  Hhipujents,)  to 
thedefendant  in  New  Vorli.  On  March  10, 
ls74.  or  thereabouts,  tbe  defendant,  l)y 
his  want  of  readincHS  to  receive  a  portion 
of  the  ice  as  he  had  agreed  to,  temp'J- 
rarlly  [)rovented  the  plaintiffs  from  per- 
forming the  contract  on  theirpart  accord- 
ing to  the  prei)nrations  made  bi'  tlieni  for 
the  purpose.  On  March  24,  1S74,  the  i>ar- 
ties,  tlien  in  New  York,  put  their  i)reviouB 
verbal  contract  into  writing,  ante  dating 
It  as  an  original  contract  made  at  Rock- 
lanil  on  .March  2,  1874.  On  the  same  day, 
(Marcli  24, 1  by  consent  of  tiie  defendant, 
the  plaintiffs  sold  the  same  ice  to  another 
party,  roserviag  their  claim  against  the 
defendant  for  the  damages  siistaine<l  by 
them  by  the  breach  of  the  contract  by  the 
defendant  on  .March  loth  or  about  that 
time.  This  action  was  commenced  on 
April  11,  lN74,  counting  on  the  contract  as 
made  on  March  2,  and  declaring  for  d;ini- 
nges  sustained  by  tlie  breach  of  contract 
on  March  10,  or  thereabouts  and  prior  to 
Alarch  24,  1S7-1.  Several  objections  are  set 
"up  against  the  plaintiffs'  right   to  recover. 

The  Hist  objection  is,  that  in  some  i-e- 
Hpeets  the  allegations  in  the  writ  and  the 
written  proof  do  not  concur.  I'.iit  we  pass 
this  poiat,  as  an  imperfection  in  the  writ 
may,  either  with  or  without  terms,  be 
corrected  by  amendment  hereafter. 

Then  it  isdainied  for  thedefendant  that, 
as  matter  of  fact,  the  parties  Intended  to 
make  a  new  ami  original  contract  as  of 
March  24,  l)y  their  writing  made  on  that 
day  and  ante-dated  March  2,  and  that  it 
was  not  their  iturpose  thereby  to  give  ex- 
presKion  and  elticacy  to  any  unwritten 
contract  made  by  them  before  that  time. 
Rut  we  think  .'i  jury  would  be  well  war- 
ranted in  coming  to  a  different  coiiclusinn. 
Undoubtedly  there  are  circumstances 
tending  to  throw  some  doubt  upon  the 
hlea  thai  both  parties  understood  that  a 
contract  w;is  fully  entered  into  on  March 
2,  ls74,  but  that  doulit  is  much  more  than 
overcome  wlien  all  the  written  and  oral 
evidence  is  consiclere<l  together.  We  think 
tlie  writing  inade  on  the  24th  March, 
with  the  explanations  as  to  Its  origin. 
Is  to  be  considered  precisely  as  it  the  par- 
ties on  that  day  had  signed  a  paper  dated 
of  that  date,  certifying  nnd  adinitiing 
that  they  had  on  the  2d  day  of  .March 
made  a  verbal  contract  and  staling  ia 
fXHct  written  terms  just  what  such  verbal 
contract  w.-is.  Pa roleviilence  is  proper  to 
show  the  situation  of  the  parties  and  the 
circumstances  under  which  the  contract 
was  made.  It  explains  but  doi's  not  alter 
the   terms   of   the  contract.    Tne   delend- 

LAW  SALES — 5 


ont  himself  invokoH  It  to  show  that,  ac- 
cording to  his  view,  the  paper  Itearrf  an 
eri'oneous  date.  .Such  evi-leiice  merely 
dis.diises  in  this  case  hucIi  facti-as  are  part 
of  the  res  ge^lie.  lienjamin  <in  .Sales,  g 
213.  Stoops  V.  .Smith,  100  .Mass.  tj:j,  CO ; 
and  cases  there  cited. 

Then,  the  defendant  nextcontends  that, 
even  if  the  writing  signed  by  the  particH 
was  intendt-d  by  them  to  operate  retro- 
actively as  of  the  first  named  dale,  as  a 
matter  of  law,  it  cannot  be  permitted  to 
have  that  effect  and  meet  thi-  reipiire- 
meats  of  the  statute  of  frauds.  The  posi- 
tion of  tlie  defendant  is,  that  all  which 
took  place  between  the  i)artles  before  the 
24tli  of  .March  was  of  the  nature  (d  nego- 
tiation and  proposition  only;  and  that 
tliere  was  no  valid  contract,  hucIi  as  Is 
called  for  by  the  statute  of  Irauils,  before 
th;it  day;  and  that  the  action  is  not 
maintainable,  because  the  breach  of  con- 
tract is  alleged  to  have  occurred  before 
that  time.  The  plaintiffs,  on  the  other 
hand,  contend  that  the  real  contract  was 
made  verbally  on  the  2d  of  March,  and 
that  the  written  instrument  Is  sutlicient 
proof  to  make  the  verbal  contract  a  vallil 
one  as  of  that  date.  (March  2.)  although 
the  written  proof  was  not  made  out  until 
twenty-two  ilays  after  that  time.  Was 
the  valid  contract,  therefore,  made  on 
March  2(1  or  .March  tlie  24th?  The  pcdnt 
raised  is,  whether.  In  view  of  the  statute 
of  frauds,  the  writing  in  this  case  shall  lie 
considered  as  constituting  the  contract 
itself  or  at  an.v  rate  un.v  Substantial  por- 
tion of  it,  or  whether  it  may  be  legarded 
as  merely  the  ne(!-;'ssnry  legal  evidence  by 
means  of  which  the  prior  unwritten  con- 
tract may  tic  proved.  In  other  words. 
Is  the  writing  the  contract,  or  only  evi- 
dence of  it;   wp    incline  to  the    latter  view. 

The  peculiar  wording  of  the  statute  pre- 
sents a  strong  argument  for  such  a  deter- 
ndnation.  The  section  reads:  "No  con- 
tract for  the  sale  of  any  goods,  ware?,  op 
merchandise,  for  thirty  dollars  or  more, 
shall  be  valid,  unless  the  purchaser  ac 
cepts  and  receives  iiart  of  tlie  goods,  or 
givi'ssomethiiig  inearnest  to  Idnd  the  bar- 
gain, or  in  part  payment  thereof,  or  some 
note  or  memorandum  thereof  is  made  and 
signel  by  the  party  to  l)e  charged  there- 
by, or  his  jigent. "  In  the  first  place,  the 
statute  does  not  go  to  all  contracta  of 
sain,  but  oidy  to  those  where  the  price  la 
over  a  certain  sum.  Then,  the  reiiuire- 
ment  of  the  statute  Is  in  the  alternative. 
The  contract  neeil  not  be  evidenced  by 
writing  at  all,  provided  "the  pnrclinser 
accepts  anil  receives  a  jinrt  of  the  goods, 
or  gives  souKdhing  in  earnest  to  l)lnd  the 
bargainor  In  part  pay  uieiit  thereof.  "  II 
any  one  of  ttiese  ciivumslances  will  as 
effectually  perfect  the  sale  as  a  writing 
would,  it  is  not  easily  seen  how  the  writ- 
ing can  actually  coustiiiite  the  contract, 
merely  because  a  writing  hnpnens  to  ex- 
ist, it  could  not  with  any  corivctnesa 
be  said,  thct  anything  given  In  earnest  to 
bind  a  bargain  was  a  substantial  part 
of  the  bargain  itself,  or  an.\  thing  more 
than  a  particular  mode  of  proof.  Then, 
it  is  not  the  contract  that  is  required  to 
be  la    writlui;,    but    only  "eume  note  or 


66 


BIRD  c.  MUITROE. 


memoranfluin  thereof."  This  lanjiiinse 
Hupposcs  that  tliu  verbal  bnrKaiii  iiuiy  be 
first  niiule,  and  u  moniDraudum  of  itKiven 
afterwards.  It  also  implies  that  no  set 
and  formal  a;?reemeiit  is  called  for.  Chan- 
cellor Kent  says  "the  instrument  is  lib- 
erally construed  without  regard  to 
forms."  The  bricfcut  possible  forms  of  a 
bargain  have  been  (Seemed  sutficient  in 
many  cases.  Certain  important  elements 
<>t  a"  completed  contract  may  l)e  omitted 
altoKcthcr.  For  instance,  in  this  state, 
the  consideration  for  the  promise  is  not 
re(|uired  to  be  expressed  in  writing.  Gil- 
lifjlian  V.  Boardraan,  2'.)  .Maine,  79.  Again, 
it  is  provided  that  the  note  or  mcmoran- 
duni  is  sufficient,  if  signed  only  by  the  per- 
son sought  to  be  charged.  One  party 
may  be  held  thereby  and  the  other  not 
be.  There  may  be  a  mutuiility  of  contract 
but  not  of  evidence  or  of  remedy.  Still, 
if  the  writing  is  to  be  regarded  in  all  cases 
as  constituting  the  contract,  in  many 
cases  there  would  be  but  one  contracting 
party. 

Another  idea  gives  weight  to  the  ar- 
gument for  the  position  advocated  by 
tlie  plaintiffs;  and  that  is,  that  such  a 
construction  of  the  statute  upholds  con 
tracts  according  to  the  intention  of  par- 
ties thereto,  while  it,  at  the  same  time, 
fully  subserves  all  the  purposes  for  which 
the  statute  was  created.  It  must  be 
borne  in  mind  that  verbal  bargains  for 
the  sale  of  personal  property  are  good  at 
common  law.  Nor  are  they  made  illegal 
by  the  statute.  Parties  can  execute  them 
if  they  mutually  i)lease  to  do  so.  The  ob- 
ject of  ( he  statute  is.  to  prevent  perjury 
and  fraud.  Of  course,  perjury  and  fraud 
cannot  be  wholly  prevented  ;  but,  as  said 
by  Bigelow,  J.,  (Marsh  v.  Hyde,  3  Gray, 
331.)  "a  memorandum  in  writing  will  be  as 
effectual  against  perjury,  although  signed 
subsequently  to  the  making  of  a  verbal 
contract,  as  if  it  had  lieen  executed  at  the 
moment  when  the  parties  consummated 
their  agreement  by  word  of  mouth."  We 
think  it  would  be  more  so.  A  person 
would  be  likely  to  commit  himself  in  writ- 
ing with  more  care  and  caution  after 
time  to  take  a  second  thought.  The 
locus  penitenticB  remains  to  him. 

By  uo  means  are  we  to  be  understood 
as  saying  that  all  written  instruments 
will  satisfy  the  statute,  by  having  the 
effect  to  make  the  contracts  described  in 
tliein  valid  from  their  first  verbal  incep- 
tion. That  must  depend  upon  circum- 
stances. In  many,  and  perhaps,  most  in- 
stances such  a  version  of  the  transaction 
would  not  agree  with  the  actual  under- 
standing of  the  parties.  In  many  cases, 
undoubtedly,  the  written  instrument  is 
per  se  the  contract  of  the  parties.  In 
many  cases,  us  for  Instance,  like  the  ante- 
dating of  the  deed  in  Egery  v.  Woodard, 
56  Maine,  4.5,  cited  by  the  defendant,  the 
contract,  (by  deed,)  could  not  take  effect 
before  delivery;  the  law  forbids  it.  So  a 
will  made  by  parol  is  absolutely  void. 
But  all  these  cl;isses  of  cases  differ  from 
the  case  before  us. 

A  distinction  is  attemi)ted  to  he  set  np 
between  the  meaning  to  be  given  to  H.  S. 
c.  Ill,  §  4,  where  it  is  provided   that  no 


unwritten  contract  for  the  sale  of  goods 
"shall  be  valid,"  and  that  to  bo  given  to 
the  several  preceding  sections  where  it 
provided  that  upon  certain  other  kinds, 
of  unwritten  contracts  "no  action  shall 
he  maintained  ;"  the  position  taken  l)eiiig 
that  in  the  former  case  the  contract  is 
void,  and  in  the  other  cases  only  voidal)le 
perhaps,  or  not  enforceable  by  suit  at 
law.  But  the  distinction  is  without  any 
essential  difference,  and  is  now  so  re- 
garded by  authors  generally  and  in  most 
of  the  decided  cases.  All  the  sections  re- 
ferred to  rest  upon  precisely  the  same 
policy.  Exactly  the  same  object  is  aimed 
at  in" all.  The  difierence  of  phraseology 
in  the  different  sections  of  the  original 
English  statute,  of  which  ours  is  a  sul)- 
stantial  copy,  may  perhaps  he  accounted 
for  by  the  fact,  as  is  generally  conceded, 
that  the  authorship  of  the  statute  was 
the  work  of  different  hands.  Although 
our  statute  (R.  S.  1S71,  §  4,)  uses  the 
words  "no  contract  shall  be  valid, "our 
previous  statutes  used  the  phrase  "shall 
be  allowed  to  be  good;  "  and  the  change 
was  made  when  the  statutes  were  revised 
in  1857,  without  any  legislative  intent  to 
make  an  alteration  in  the  sense  of  the  sec- 
tion. (R.  S.  1841,  c.  136,  §  4.)  The  two 
sets  of  imrases  were  undoubtedly  deemed 
to  be  e(iuivalent  expressions.  The  words 
of  the  original  English  section  are,  "shall 
not  be  allowed  to  he  good,"  meaning,  it 
is  said,  not  goo<l  for  the  purpose  of  sustain- 
ing an  action  thereon  v/ithout  written 
proof.  Browne,  St.  Frauds,  §§  115,13(1.  and 
notes  to  the  sections;  Benjamin's  Sales,  § 
114;  Townsend  v.  Hargraves,  118  Mass. 
325;  and  cases  there  cited. 

There  are  few  decisions  that  bear  direct- 
ly upon  the  precise  point  which  this  case 
presents  to  us.  Erom  the  nature  of  things, 
a  state  of  facts  involving  the  question 
would  seldom  exist.  But  we  regard  the 
case  of  Townsend  v.  Hargraves,  above 
cited,  as  representing  the  principle  very 
pointedly.  It  was  there  held  that  the 
statute  of  frauds  affects  the  remedy  only 
and  not  the  validity  of  the  contract;  and 
that  where  there  has  been  a  completed 
oral  contract  of  sale  of  goods,  the  accept- 
ance and  receipt  of  part  of  the  g<iods  by 
the  purchaser  takes  the  case  out  of  the 
statute,  although  such  acceptance  and  re- 
ceipt are  after  the  rest  of  the  goods  are 
destroyed  by  fire  while  in  the  hands  of 
the  seller  or  his  agent.  The  date  of  the 
agreement  rather  than  the  date  of  the 
part  acceptance  was  treated  as  the  time 
when  the  contract  was  made;  and  the 
risk  of  the  loss  of  the  goods  was  cast 
upon  the  buyer.  Vincent  v.  Germond, 
11  Johns.  2S3,  is  to  the  same  effect.  We 
are  not  aware  of  any  case  where  the  ques- 
tion has  been  directly  adjudicated  ad- 
versely to  these  cases.  Webster  v.  Zielly, 
52  Barb.  (N.  Y.)  482,  in  the  argument  of 
the  court,  directly  admits  the  same  prin- 
ciple. The  case  of  Leather  (,'loth  Co.  v. 
Hieronimus,  L.  R.,  10  Q.  B.  141).  seems  also 
to  he  an  authority  directly  in  point. 
Thompson  v.  Alger,  12  Met.  42S,  435  and 
Marsh  v.  Hyde,  3  Gray,  331,  relied  on  by 
defendant,  do  not,  in  their  results,  o[)xjose 
1  the  idea  of  the  above  cases,  although  there 


^! 


BIRD  t».  MUNROE. 


fi7 


niiiy  be  sonic  expreHsion  In  theni  incon- 
Histpnt  tlierpwith.  AltoKt-'tlicr  iinotluT 
()iu'Btion  wuH  lit'tore  tlie  court  in  tlielutter 

CUHIH. 

but  there  are  a  trreat  many  cases  where, 
in  coiiHtruInt?  tlie  statu fe  of  frauds,  the 
force  and  eftect  of  the  decisions  po  to  sus- 
tain the  vi(5\v  A'e  lake  of  tills  <|uestloM,  hy 
the  very  strongest  iinplicatlon  :  Such  as; 
that  the  statute  does  not  apply  where 
the  contract  has  liecn  executed  on  hotli 
Hides;  Bucitnam  v.  Nash,  12  M nine.  474;  — 
that  no  person  can  take  udvanta;ceof  the 
statute  liut  the  i)arties  to  the  contract, 
anil  tlieir  privies;  Cowan  v.  Adams,  10 
Maine,  :j74; — that  the  meniorandum  may 
be  made  by  a  broker:  Hinckley  v.  Arey, 
27  Maine,  .'i()2;  or  by  an  auctioneer; 
Cleaves  V.  rosH,4  Maine,  1;— that  a  sale  of 
personal  property  is  valid  when  there  has 
been  a  delivery  and  acceptance  of  part, 
nItliouKh  the  part  be  accepted  several 
hours  after  the  sale;  Davis  v.  Afoorc,  13 
Maine,  424  ;  or  several  days  after;  Bush 
v.  Holmes,  Tj^  Maine,  417;  or  e»er  so  lonji 
after;  Browne  St.  Frauds,  §  I{;J7,  and  cases 
there  noted; — that  a  creditor,  receiving 
payments  from  his  debtor  without  any 
direction  as  to  their  application,  may  ap- 
ply them  to  a  debt  on  which  tlie  statute 
of  frauds  does  not  allow  an  action  to  be 
maintained;  Uaynes  v.  Nice,  loii  .Mass. 
327; — tliat  a  contract  made  in  France, 
and  valid  tliere  without  a  writlii;;,  could 
not  be  enforced  in  Knfrland  without  one. 
upon  the  ■tround  that  the  statute  related 
to  the  mode  of  procedure  and  not  to  tlio 
validitvtif  thecontract;  Leroi.x  v.  Brown, 
12C.  B.  SOI  ;  but  this  ea.se  has  been  ques- 
tioned somewhat ; — that  a  witness  may  be 
Kuilty  of  perjury  who  falsely  swears  to  a 
fact  which  may  not  be  competent  evi- 
dence by  the  statute  of  frauils.  liut  which 
becomes  material  because  not  objected 
to  by  the  party  against  whom  it  was 
offered  and  received;  Howard  v.  Sexton, 
4Coinst()cl<.  I."i7; — that  an  afient  wlioslji:is 
a  memorandum  need  not  have  his  author- 
It.v  at  the  time  the  contract  Is  entered 
into.  If  his  act  is  orally  ratified  after- 
wards; .Maclean  v.  Dunn,  4  Bin;;.  722;  — 
that  the  identical  aKreement  need  not  be 
Higned,  and  that  it  issutticieiit  if  it  is  ac- 
knowledged by  any  other  instniuieut  duly 
signeil ;  (jale  v.  Nixon,  G  Cow.  t4."i:  — that 
the  recognition  of  the  contract  may  be 
contained  in  a  letter;  or  in  several  let- 
ters, if  so  connected  by  "  written  links"  as 
to  form  su(iici.-ntevidence  of  the  contract ; 
— that  the  letters  may  lie  addresseil  to  a 
third  pers(ui ;  Browne  St.  Frauds.  §  :U('t; 
Fyson  v.  Kitton.  .■!0  E.  L.  &  Kq.  :!74 ;  tiili- 
Hon  v.  Holland,  L.  H.  1  C.  I".  1  ;— that  an 
ajient  may  write  his  own  name  instead  of 
that  of  his  principal  If  intending  to  bind 
his  (irincipal  by  it;  Williams  v.  Bacon.  2 
Gray,. "1X7,  3!)^,  and  citations  there;  — that  a 
proposal  in  writing,  if  accepted  by  the 
other  party  by  parol,  is  a  sullicient  meiuo- 
randiini;  Keu'ss  v.  I'icksley,  L.  U.,  1  Fxc. 
342; — that  where  one  parly  is  bound  li.v  a 
note  or  memoranduni  the  other  part.v 
niiiy  lie  hound  if  he  admits  the  writing  by 
another  wrltinu;  by  liiin  subseiiuently 
sinned;  Dobell  v.  Hutchinson.  3  A.  &  K. 
3rir>;— that  the   written  contract   may   be 


rescinded  by  parol,  although  many  deci- 
sions are  opposed  to  this  proposition; 
R'diardson  v.  (Jooper,  2.")  .Maine,  4.'>0;  — 
that  equity  will  inter-fere  to  (irevent  a 
party  making  the  statute  an  Instrument 
of  fraud;  Ryan  v.  Dox,  34  N.  Y.  307;  Hae- 
snni  v.  Barrett,  IID  .Mass.  2o(>,  2.'.>S;— that 
a  contract  verlially  made  may  bo  mnin- 
taineil  for  certain  purposes,  notwit  hstand- 
Ing  the  statute;— that  a  person  who  pays 
his  money  under  it  cannot  recover  it  back 
if  the  other  side  is  willinK  to  perform; 
and  he  can  recover  If  perfornuince  is  re- 
fused ;  Chapman  v.  Rich,  (!:!  .Maine,  .jSM, 
and  cases  cited; — that  n  respondent  In 
equity  waives  the  statute  as  a  defense 
unless  set  up  in  pica  or  answer;  Adams 
V.  Patrick,  30  Vt.  ."di;;— that  it  must  be 
specially  pleaded  in  an  action  at  law; 
.\Iiddlesex  Co.  v.  Osgood,  4  (iray,  447; 
[..uwrence  v.  Chase,  .'i4  Maine,  r.H;;— that 
the  ilefendant  may  waive  the  protection 
of  the  statute  and  admit  veriial  evidence 
and  become  bound  by  it;  Browne  St. 
Frauds,  §  13.1. 

It  ma.v  be  remarked,  however,  that  In 
most  courts  a  defendant  may  avail  himself 
of  a  defense  of  the  statute  under  the  gen- 
eral issue.  'J'he  different  rule  in  .Massa- 
chusetts anil  Maine,  grew  out  of  the  prac- 
tice act  In  the  one  state  and  in  the  stat- 
ute requiring  the  tiling  of  specilications  In 
the  other. 

It  is  dear  from  the  foregoing  cases,  as 
well  as  from  many  more  that  might  be 
cited,  that  the  statute  does  not  forbid 
parol  contracts,  hut  only  precludes  the 
bringing  of  actions  to  enforce  them.  As 
said  ill  Tliorntun  v.  Kempster,  .'i  Taunt. 
7S(i,  7SS,  "the  statute  of  frauds  throws  a 
dilhculty  in  tlie  way  of  the  evidence."  In 
a  case  already  cited,  ,Jervls,  C.  J.,  said, 
"the  effect  of  the  sectimi  is  not  to  avoid 
the  contract,  but  to  bar  the  remedy  upon 
it,  unless  there  be  writing."  See  analo- 
gous case  of  Mc(.'Iellan  v.  McClellan,  Gj 
Maine,  500. 

But  the  defendant  contends  that  this 
course  of  reasoning  would  make  a  mem- 
orandum siifllcient  If  made  after  action 
brought,  and  that  the  authorities  do  not 
agree  to  tliat  proposition.  Tliere  has 
been  some  judicial  inclination  to  favor  the 
doctrine  to  that  extent  even,  and  there 
may  be  some  logic  in  it.  Still  the  current 
of  decision  requires  that  tlie  writing  must 
exist  before  action  brought.  .\nil  the 
reason  for  the  requirement  does  not  niili- 
tato  against  the  idea  that  a  nieiiioraiidum 
Is  only  evidence  of  the  contract.  There 
is  no  actiouablecontract  before  niemoran- 
diim  obtained.  The  contract  cannot  he 
sued  until  it  has  lieen  legally  verilied  by 
writing;  until  then  there  Is  nocnu-ie  of  ac- 
tion, although  there  is  a  contract.  The 
writing  is  a  condition  precedent  to  the 
right  to  sue.  Willes,  ,1..  perhaps  correctly 
descrllies  It  in  (jibson  v.  Holland,  supra, 
when  he  says,  "the  meinorandiini  Is  In 
some  wav  to  stand  In  the  place  of  a  con- 
tract." He  adds:  "Thecourts  havecoii- 
siilered  the  in tentloii  of  the  legislature  to 
")e  of  a  mixed  character;  to  prevent  per- 
sons from  liaviiigactions  hroiight  against 
them  so  long  as  no  written  evidence  was 
existing  when  the  action  was  Instituted." 


68 


BIED  V.  MUNROE. 


Browne,  St.   Frauds,    §  338.    Benjamin's  1  cept  for  the  purpose  of  sastalninR  an  ac 


Suley,§l.i9.  Fricker  v.  Thomlinson.l  Mao 
&  Gr.  772.  Bradford  v.  Spyker,  32  Ala. 
134.  Bill  V.  Bament.  9  M.  &  W.  30.  Pliil- 
brook  V.  Belknap,  6  Vt.  3S3.  In  the  last 
case  it  is  said, "strictly  epeakins,  the  stat- 
ute does  not  make  the  contract  void,  ex- 


tion  upon  it,  to  enforce  it. 
Action  to  stand  for  trial. 

APPLETON,  C.  J..  WALTON.  DAN- 
FORTH,  VIRGIN  and  LIBBEY,  JJ.,  con- 
curred. 


JJI^llOl'  r.  >\1\IAA\(). 


BISHOP  V.  siiii.i.rn). 

(2  Barn.  &  Aid.  :!-'!),  n.  (a).) 

Kind's  Bench.  Hilary  Terra.     1819. 

Trover  for  iriiii.  The  iron  whh  to  Vie 
■delivered  under  >i  conlraut  tliut  certain 
hillH  oMtstiiiKliri;^  !it;innHt  the  )daintirf 
Hliiiidd  lie  liiken  out  <it  circidation.  Alter 
H  piirt  of  the  ii-on  hiid  lieen  ilelivered,  and 
no  IjillH  had  licen  taken  out  of  circulation, 
the  jilaintilf  Htopped  the  lurllier  delivery, 
and  lirou>;ht  trover  for  what  had  been 
deliveroil.  Scarlett,  for  defendant,  con- 
ten(h>d  that  trover  would  not  lie,  and  triat 
the   only   reniotly    for  tne  plaintiff  was  to 


hrin;:  an  action  fur  tlie  brencli  of  the  con- 
tract by  the  clefendant.  Hut  the  ColItT 
held  that  thlH  woh  only  it  conditional  de- 
livery, aiKl  tlie  condilion  liein«  broken, 
the  plaintiff  initilit  brin;;  trover.  AIJ- 
ISOTT,  C.  J..  Hald  he  had  left  it  to  the  jury 
to  Hiiy,  whether  the  delivery  of  the  iron 
and  tlie  redelivery  of  the  blllH,  were  to  be 
contenipoiary,  and  that  the  jtirv  found 
that  fact  in  theaflinnativc;  and  BAYIJCY, 
.1.,  added,  that  if  a  tradeKinaii  Hold  };(iodH 
to  be  paid  for  on  delivery,  iitirl  IiIh  Hervant 
by  nilHtake  ilelivers  tliein  without  meiv- 
Injr  the  inoiipy,  he  may,  after  riemund  i.nd 
refunal  to  deliver  or  pay,  brluK  trover  for 
hiH  kouUb  against  the  purchasur. 


BLOXAM  t>.  SANDERS. 


73 


BI-OXAM  .(  al.  V.  SANDERS  et  al. 

(4  B.irii.  &  C.  041.) 

Kins's  Bpncli.  Alifliaolmas  Term.  1825. 

Triiver  to  receiver  tlie  value  of  a  qiiunti- 
ty  of  liopH  from  the  (Icfoiulnnts.  Ac  the 
trial  bflore  Abbott  C.  Jut  the  London 
HJlti'iKx,  Jiftrr  liiHt  'J'rinitv  term,  the  jurv 
found  a  vcr.lii't  for  tlic  plaintiffH,  dainaKcH 
.tiOOU,  MUbje<-t  to  the  opinion  of  this  court 
upon  the  following  <'iihc:  Tlie  plaintiffs 
were  assiKnees  of  .J.  It.  Sa.\b.v,  a  iianUrupt 
nixlcr  a  I'oinrnission  of  liankrnpt  duly  is- 
hu(mI  aKainsl  him  on  tlic  .'>th  .laiiunry  isL'4. 
The  aet  of  bankruptcy  was  committed  on 
the  ist  November  ISL'.'i,  tlio  bauivrupt  hav- 
in>::  on  I  hat  day  surrendered  hituself  to 
prison,  where  lie  lay  more  than  tivo 
months.  The  defendants  wore  lioii  fac- 
tors Hiid  merchants  in  the  boroufih  of 
Southw.irk.  I'reviims  to  his  bankruptcv 
the  bankrupt  had  been  a  dealer  in  hops, 
and  on  the  7th,  Kith,  and  2:!d  .August  pur- 
chased from  the  dpfendants  the  hops 
(anions;  others)  for  which  this  acti<in  was 
lii-ounht.  BouKlit  notes  were  ilelivereil  in 
the  tollowinK  form:  "Mr.  .John  liobert 
Sa.xby,  of  Sanders,  I'arkes,  and  fo.  T.  M. 
Simmons,  eijrht  pockets  at  l.'i.'.s.  stii  Au- 
K'.ist  lSL':t."  I'art  of  thehops  were  weiirhed, 
anil  an  account  of  the  wcijihts  was  deliv- 
ered to  .Saxby  by  the  ilefendants.  The 
samples  were  jiiven  to  the  liankrupt.  anil 
bills  of  parcels  were  also  deli  rered  to  him 
in  which  he  was  made  debtor  for  si.x  differ- 
ent iiarcels  of  hojis,  the  amount  of  which 
was  tr.'l'.t.  The  usual  time  of  iiaymenl  in 
the  trade  was  the  second  Saturday  siibse- 
(pient  to  a  pun  linse.  I'iirt  of  the  hojis 
belonged  to  the  defendants,  and  part 
tiny  sold  as  factors,  but  they  sold  all  in 
their  own  names.  It  lieins  the  custom  in 
ihe  hop  trade  to  do  so.  It  was  proved 
that  liie  b.inkrnpt  had  said  more  than 
once  that  the  hops  were  to  remain  in  the 
defendants'  liaiiils  till  paid  for,  and  that 
he  said  so  when  he  was  about  buyiiiK  one 
of  the  parcels  of  hops  for  whicli  the  action 
was  broiifjlit.  The  banUrnpt  did  not  pay 
for  the  hops,  and  on  the  (itii  September 
ISL':!  the  defendants  wrote  to  the  bankrupt, 
and  desired  him  to  "  lake  notice,  that  un- 
less he  iiaid  for  the  liops  they  had  sohl 
him,  on  or  before  Tuesday  then  next,  the 
Ilefendants  would  proceed  to  res.'ll  them, 
holdinfi  liiai  acconutalile  for  any  loss 
which  mitrht  arise  inconseipiencetliereof." 
liefore  the  bankruptcy  the  ilefendants  did 
not  sell  any  parcel  of  hops  without  the 
bankrupt's  exiiross  assent.  After  the  no- 
tire  already  stated  the  defendants  sold 
Home  parcels  of  the  hops,  but  in  one  in- 
Htance  the  liankrupt  refused  to  allow  the 
defendants  to  sell  a  parcel  of  ho(is  to  a 
Jiersou  named  by  them  at  the  price  offered, 
and  that  p.ircel  was  nceorilinirly  sold  by 
the  defendants,  before  Saxtiy's  bank- 
ruptcy, to  another  person  by  Saxby's  au- 
thority. On  another  occasion  in  the 
month  of  September  the  bankrupt  had 
employed  a  broker  to  sell  another  parcel 
ot  the  ho|is.  tint  the  defend.iuts  refu.sed  to 
deliver  them  without  bciim  paid  for  them. 
After  the  act  of  bankruptcy  I  he  defend- 
ants sold  hoiis  of  the  bankrupt's  to  the 
amount   of  fC'.isO   Ills.  jd.     The   defendants 


delivered  arconnt  Hales  of  tli:;  hopo  ho  sold 
by  tliem  atler  the  baiiKruptcy.  'I'he  hopH 
were  stated  to  be  sold  for  Saxby,  and  he 
was  chjir>red  warehouse  rent  from  the  auth 
of  AiiKiist,  and  also  comniisslon  on  the 
sales.  ISe.sides  the  hops  purcliUHed  from 
the  ilefendantM,  the  bankrupt  placed  in 
their  warehoiisf  nineteen  pockets  of  hopti 
for  sale  by  them  (as  fartorn).  of  which 
lifteen  pockets  were  sold  on  and  after  the 
l;ith  of  .lunuary  1n2I  of  the  value  of  £77  I'Js. 
.'id.,  and  of  which  four  remained  in  their 
warehouse  ot  the  time  of  the  trial,  which 
four  were  of  the  value?  of  £14,  unil  there 
were  also  unsold  of  the  liops  purchased 
from  defendants  seven  ba^s,  lifty-six 
pockets,  of  the  value  of  Xi'd  l:{s.  (Id.  'I'here 
was  a  demand  by  |:  la  in  lifts  of  these  hops, 
and  a  tender  of  warehouse  rent  and 
charKoh,  and  a  refusal  on  the  part  of  the 
defendants  lo  deliver  them,  liefore  action 
brounht.  The  jury  found  that  the  defend- 
ants did  not  rescind  the  sales  made  by 
them  to  the  bankrupt.  This  case  wu8 
ar«ued  ot  the  Bittings  before  lasfterin,  by 

Evans,  for  the  pIuintiffK.  Abraham, 
contra. 

BAl'LEY,  J.now  delivered  the  judgment 
of  the  court.  This  wns  on  action  of 
trover  for  certain  quantities  of  hops  Kold 
by  the  defendants  to  Saxby  before  liiH 
bankruptcy,  and  for  certain  other  hops 
which  Saxby  liad  pli-.ced  In  defendants' 
warehouses  that  defendants  in  their  clinr- 
acterot  factors  miKht  sell  them  for  bis  use, 
and  the  nuestion  us  to  tliis  latter  parcel 
stands  upon  jierfeclly  distinct  urounds 
from  the  iinestion  as  to  the  others.  Tills 
parcel  consisted  of  nineteen  pockets;  de- 
fendants sold  none  of  them  until  after 
Saxby's  bankruptcy,  and  then  they  sold 
lifteen  pockets,  not  for  the  use  of  the  ns- 
siKiiees,  but  lo  apply  the  proceeds,  not  for 
any  debt  due  to  them  in  their  character 
of  factors,  but  to  discliarnc  a  claim  tliey 
considered  themselves  as  having  upon 
Saxb.*' in  reiiard  to  the  other  hops;  and 
the  other  four  poc'^ets  they  refused  to  de- 
liver to  the  assi;;neeH.  It  was  candidly  ad- 
mitted upon  the  arnunient,  and  was  clear 
beyond  all  doubt,  that  the  defendants 
were  not  warranted  in  applyins:  the  pro- 
ceeds of  the  lifteen  pockets  to  the  purpose 
to  which  Ihey  attempted  to  apply  them, 
and  that  they  had  no  leiral  ground  for 
wilhholdli  n  tiie  four  pockets;  and,  there- 
fore, to  the  extent  of  these  nineteen  pock- 
ets, the  value  of  which  is  C'.H  Ills.  ,'nl.,  we 
think  it  clear  that  tlie  plaintiffs  are  enti- 
tled to  recover.  The  other  quantities 
were  hops  Saxb.v  had  barcained  to  buy 
of  the  defendants  on  different  days  in  A'»- 
Kust  l^^;.":!,  nnd  for  which  defendants  had 
delivered  hou):ht  notes  to  Saxliv.  The 
bought  notes  were  in  this  form:  ".Mr.  .1. 
H.  Saxby,  of  S.inders,  I'arkes,  and  Co.,  T. 
.\I.  Simnionds,  ei;iht  pockets  at  l.Vis.,  Sth 
.\umist  1^1.':!."  i'art  of  the  hops  were 
weighed,  and  an  account  delivered  to 
Saxby  of  the  weiirhts,  and  samples  were 
jrixeu"  lo  Saxby  and  Invoices  delivered. 
The  luiucht  notes  were  silent  as  to  the 
time  for  delivering  the  hops,  and  also  as 
to  the  time  for  payin;;  for  them,  but  the 
usual  tiinefor  payini;  for  hop.s  was  proved 


74 


BLOXAM  V.  SANDEUS. 


to  bp  tlu>  second  Snturday  iiftor  tlic  piir- 
clinse.  It  was  also  provoil  that  Saxlj.v 
liiicl  said  that  the  hops  were  to  rernnin 
with  the  (lefendai)tH  till  they  were  palil 
for;  hut  us  the  adinissibllity  of  such  evi- 
dciK-e  was  (luestioiiecl,  and  in  our  view  of 
the  case  it  is  unnecessary  to  decide  that 
point,  1  only  mention  it  to  dismiss  it. 
('['he  learned  judjie  then  stated  the  other 
facts  set  out  in  the  special  case,  and  then 
proceeded  as  follows.)  Under  these  eir- 
cuni.stances  the  (luestion  is,  whether  in 
respect  of  these  hops  the  plaintiffs  are  en- 
titled to  recover.  It  was  ui-Kcd,  on  the 
part  of  the  plaintiffs,  that  the  saleof  these 
hops  vested  the  property  in  them  in  Sax- 
l)y ;  that  the  hops  were  to  be  considered 
as  sold  iipoi:  credit,  and  that  ilefendanis 
hyd  no  lien  therefore  upon  any  of  them 
tortile  price;  that  if  they  ever  had  any 
lien,  it  was  destroyed  as  to  those  they 
sold  by  the  act  of  sale,  and  that  the  iilain- 
tiffs  were  entitled  to  recover  the  full  value 
of  what  were  sold,  without  maUins  any 
deduction  for  the  price  which  was  unpaid. 
It  is,  therefore,  material  to  consider 
whetlier  the  propert.v  vested  in  Saxby  to 
any  and  to  what  e.\tent;  and  what  were 
the  respective  rights  of  Saxby  and  of  the 
defendants.  Where  goods  are  sold  and 
nothinjj  is  said  as  to  the  time  of  the  de- 
livery, or  the  time  of  payment,  and  every 
thin;;'  the  seller  has  to  do  with  them  is 
complete,  the  property  vests  in  the  buyer, 
so  as  to  subject  him  to  the  risk  of  any  acci- 
dent which  may  happen  to  the  u:oods,aMd 
the  seller  is  liable  to  deliver  them  when- 
ever tliey  are  demanded  uiioii  payment  of 
the  price;  but  the  buyer  has  no  ri-^ht  to 
have  possession  of  the  jioods  till  he  pays 
the  price.  The  buyer's  riglit  in  respect  of 
the  price  is  not  a  mere  lien  which  he  will 
forfeit  if  he  parts  with  the  possession,  but 
grows  out  of  his  ori{;inal  ownership  and 
(louiiniou,  and  iiayment  nr  a  tender  of  the 
price  is  a  condition  precedent  on  the  buy 
er's  part,  atid  until  he  makes  such  pay- 
ment or  tender  he  has  no  ri^ht  to  the 
possession.  If  goods  are  sold  upon  credit, 
and  nothing  is  agreed  upon  as  to  the  time 
of  delivering  the  goods,  the  vendee  is  im- 
mediately en  titled  to  the  jiossession,  and 
the  right  of  possession  and  the  right  of 
property  vest  at  once  in  him  ;  but  his  right 
of  possession  is  not  absolute,  it  is  liable  to 
be  defeated  if  he  becomes  insolvent  before 
he  obtains  possession,  Tooke  v.  Holling- 
worth,  5  T.  K.  215.  — Whether  default  in 
payment  when  the  credit  expires  will  de- 
stroy his  right  of  possession,  if  he  has  not 
before  that  time  obtained  actual  jiosses- 
sion, and  put  him  in  the  same  situation  as 
if  there  had  been  no  bargain  for  credit,  it 
is  not  now  necessary  to  inquire,  because 
this  is  a  case  of  insolvency,  and  in  case  of 
insolvency  the  point  seems  to  be  perfectly 


[clear,  Hanson  v.  Meyer.  (!  East,  G14.  If 
the  seller  has  dispatched  the  goods  to  the 
buyer,  and  insolvency  oeurs,  he  has  a 
right  in  virtue  of  his  original  ownership  to 
stop  them  In  transitu,  .Mason  v.  Lickbar- 
row,  1  II.  131.  357.— Ellis  v.  Hunt,  3  T.  R. 
464.— Hodgson  v.  Loy,  7  T  R.  440.— Inglis 
V.  Usherwood,  1  East,  515. — Bohtlingk 
v.  Inglis,  3  East,  3S1.  Why?  Because 
the  property  is  vested  in  the  buyer,  so  as 
to  subject  liiin  to  the  risk  of  any  accident; 
liut  he  has  not  an  indefeasible  right  to 
the  possession,  and  his  insolvency,  with- 
out payment  of  the  price,  defeats  that 
right.  And  if  this  be  tlie  case  after  he  has 
dispatched  the  goods,  and  whilst  they  are 
in  transitu,  a  fui-tiori,  is  it  when  he  has 
never  parted  with  the  goods,  and  when 
no  transitus  has  tiegun.  The  bu.ver,  or 
those  who  stand  in  his  place,  may  still  ob- 
tain the  right  of  possession  if  they  will 
pay  or  tender  the  price,  or  they  may  still 
act  upon  their  right  of  property  If  any 
thing  unwarrantable  is  done  to  that  right. 
If,  for  instance,  the  original  vendor  sell 
when  he  ought  not,  they  may  bring  a  spe- 
cial action  against  him  for  the  injury  they 
sustain  by  such  wrongful  sale,  and  recover 
damages  to  the  extent  of  tha  t  injury  ;  tint 
they  can  maiutaiii  no  action  in  which 
right  of  property  and  right  of  possession 
are  both  recjuisite,  unless  tliev  have  both 
those  rights.  Gordon  v.  Harper,  7  T.  R.  9. 
Trover  is  an  action  of  that  description,  it 
reijiiires  right  of  property  and  right  of 
possession  to  support  it.  And  this  is  an 
answer  to  theargiiment  upon  thecharge  of 
warehouse  rent,  and  the  non-rescinding  of 
the  sale.  If  the  defendants  were  forced  to 
keep  the  hops  in  their  warehouse  longer 
than  Saxby  had  aright  to  require  them, 
they  were  entitled  to  charge  him  with 
that  expense,  but  that  charge  gave  him 
no  better  right  of  possession  than  he 
would  have  had  if  that  charge  had  not 
been  made.  Indeed  that  charge  was  not 
made  until  after  the  bankruptci',  and  un- 
til the  defendants  insisted  that  the  right 
of  possession  was  transferred  to  their  sec- 
ond vendee.  Then  as  to  the  non-rescind- 
ing of  the  sale,  what  can  be  its  effect?  It 
is  nothing  more  than  insisting  that  tlio 
defendants  will  not  release  Saxby  from 
the  obligiition  of  his  purchase,  but  it  will 
give  him  no  right  beyond  the  right  his 
purchase  gave,  and  that  is  a  right  to  have 
the  possession  on  payment  of  the  price. 
As  that  price  has  not  been  paid  or  ten- 
dered, we  are  of  opinion  that  this  acti<in, 
which  is  not  an  action  for  special  damage 
by  a  wrongful  sale,  but  an  action  of 
trover,  cannot,  as  to  those  hops,  be  main- 
tained. The  verdict  must,  therefore,  be 
for  the  plaintiffs  for  the  sum  of  £91.  IDs.  fid. 
only. 
Judgment  for  the  plaintiffs. 


BOOTIIBY  V.  PL.VISTED. 


77 


BOOTUBY  et  al.  v.  PLAISTED. 

(51  N.  H.  43C.) 

Supreme  Judicial  Court  of  New  Hampshire. 
KooUiugham.    Dec,  1871. 

AsHunipHit  by  JnnicH  L.  BoKthliy  and 
another  UKuinHt  Siilricy  <J.  I'lainte(l  tur 
KouiIk  Hold  and  di-livercd.  Tlie  court  or- 
dered a  verdict  for  [ilaiiitiffH,  wliicli  de- 
fendant moved  to  KCt  aHide.  Judj^ment 
on  verdict. 

A  traveling  agent  for  ))!nlntiffs,  who 
were  li(Hior  dealerH  in  New  Yorlc,  called  at 
defenilaiit'H  place  of  bnsincHS  in  New 
HnniiiHliire,  and  showed  him  Hnniples  of 
variouH  liquorH.  Defendant  gave  tlie 
eale.snian  an  order  for  some  of  these  liq- 
uors, it  Ijeing  agreed  tliat  the  purchaser 
need  not  accept  them  If  they  were  not  lil<p 
the  snni[)leH  shown  liini.  The  licpiors  were 
forwarded  to  defendant  from  New  Yorii, 
and  received  and  used  by  him;  plaintiffs 
charging  defendant  for  cartage  in  New 
York,  and  he  paying  the  freight  from  New 
Yorl<  to  his  place  of  business  iu  New 
Hampshire. 

Krinii  and  Butler,  for  plaintiffs.  Hatch 
and  i'age,  for  defendant. 

SAltUliNT,  J.  In  all  respects  save  one, 
this  sale  of  liquor  stands  upon  the  same 
foundation  as  tlie  numeroiis  cases  report- 
ed in  ourstate.  Tha  t  e.xception  is  tlie  fact 
that  the  drfoadant,  "after  tlie  liquors  ar- 
rive<l  at  his  store,  might  examine  tiiem, 
ami  if  not  according  tosaniple  iienced  not 
aocepc  the  same. "  But  waiving  that  part 
of  tlie  contr.ict  for  the  present,  tliis  case, 
aside  from  tliat,  presents  the  same  fea- 
tures of  numerous  other  cases  where  there 
was  a  contract  for  tlie  sale  of  liqiiurs 
niadein  New  Hampshire,  but  tliecompieted 
sale  (completed  by  separating  the  liinKjrs 
from  alargermass  antl  setting  them  apart 
for  the  defendant,  ni'irliing  and  directing 
them,  ancl  tlien  by  delivery  at  the  place 
agreed  on)  was  in  anotlier  state.  Tlie 
cliarue  lor  cartage  is  waived  liy  the  plain- 
tiff; and  the  case  finds  that  the  defendant 
paid  tlie  freiclit  from  New  York.  Itanchor 
V.  Warren,  33  N.  II.  1S3:  Smith  &  Lougce, 
\.  .Smitli,  27  N.  H.  -44;  Woolsey  v.  Bailev, 
27  N.  II.  l!li);  Gassett  v.  Godfrey.  2(1  N.  H. 
41.5;  Garland  v.  Lane.  40  N.  11.248;  But- 
ler V.  Norliiumberland.  .".0  .\.  II.  3:1. 

But  we  cannot  see  tliat  the  additional 
provision  as  to  acceptance  is  anything 
more  tlian  the  law  implies  in  every  con- 
tract wiiere  a  sale  is  made  liy  sample  or 
with  warranty,  except  that  in  this  case  it 
was  asireed  that  the  defendant  should  de- 
cide for  himself  whether  or  not  the  goods 
were  according  to  tlie  sample;  and  he  cer- 
tainly cannot  lie  heard  to  object  that  he 
himself  was  made  the  umpire,  and  lias  by 
his  own  acts  decided  the  case  in  favor  of 
the  plaintiffs. 

His  accepting   and    using   the  goods   la 


Rufflcient  proof  that  they  were  considered 
to  be  according  to  sample;  and  if  they 
were  according  to  the  sample,  then  he  had 
no  right  or  power  under  the  contract  to 
refuse  to  receive  them. 

Wliat  questions  might  have  arisen  had 
the  d<'fendaiit  in  fact  refused  to  receive 
ttiem,  it  is  not  important  here  to  deter- 
mine. Here  was  a  contract  for  n  sale  and 
delivery  in  New  York  of  a  certain  descrip- 
tion of  goods  as  iicr  sample.  If  the  pluiii- 
tiffs  pi'rformed  tlieir  jmrt  of  tlie  contract 
fully  l)y  <leliverlng  at  the  time  and  place 
at'reed  the  article  which  they  agreed  to 
furnish,  then  it  became  at  once  the  prop- 
erty of  the  defendant,  and  he  would  ordi- 
narily have  no  riglit  to  refuse  to  accept 
it.  Onlinarliy  it  would  be  a  question  for 
tlie  jury  to  settle,  whetlier  lln-  gooils  ile- 
livereil  were  acrcirdiim  to  coatract  or  like 
the  sample.  But  in  tliis  case  the  parties 
agreed  that  tliat  fact  should  be  referred  to 
the  defendant,  ami  he  has  ilecided  the  case 
In  favor  of  the  plaintiff. 

Tlie  defendant  might  refuse  to  nccejit  If 
the  article  was  not  such  as  tlie  plaintiffs 
had  sold  him.  He  was  at  liberty  to  re- 
fuse to  receive  an  article  which  lie  had  not 
tiouglit  or  agreed  to  take.  But  tlieartlcle 
in  tills  case  which  was  sold  was  delivered 
and  was  accepted,  and  we  thitik  the  con- 
tract binds  the  defendant  ironi  the  timo 
the  goods  were  delivered. 

A  case  in  point  is  Giiison  v.  Stevens,  8 
How.  (U.  S.I  401,  where  there  was  a  guar- 
antee that  certain  goods  sold  should  bear 
inspiction.  In  that  case  the  price  had 
been  paid  and  a  bill  of  sale  of  llie  ^oods 
taken,  but  no  delivery  of  the  iroods  hail 
been  made,  they  were  left  in  the  hands  of 
the  vendor.  Taney.  C.  . I.,  in  tlie  opinion, 
says, —  'Tlie  guarantee  that  the  articles 
siiould  pass  inspection  does  not  affect  the 
character  of  tlie  transartion,  or  convert  it 
into  an  exicntory  tontract.  It  Is  iiotliing 
more  that  tlie  usual  warranty  of  the 
soundness  and  quality  of  the  tiling  sold, 
which  is  taken  in  every  sale  of  personal 
property  where  tlie  purchaser  tloes  not 
choose  to  take  the  risk  upon  liiniself.  "  2 
Kent's  Com.  4S0;  1  Parsons  on  Con.  't'X\;  1 
Smith's  Lend.  Cases  308;  \'incent  v.  Oer- 
niorid,  11  .loiins.  2S3. 

As  to  the  ipiestlons  and  answers  In  the 
plaintiff's  deposition,  they  are  clearly  roni- 
petent  as  they  staml.  The  witness  states 
the  matter  as  s<inietliiiii;  witliln  his  own 
knowledge,  and  If  so,  the  facts  stated  are 
all  competent  and  propi>r.  But  it  is  urged 
that  it  must  beiiiferrcd  from  the  facts  stat- 
ed in  tlie  case  that  the  witness  did  not 
know  tlie  facts  contained  In  tlie  answers 
except  by  hearsay.  But  we  think  no  such 
inference  necessarily  follows  from  the  facts 
stated  in  tlie  case.  I'pon  this  point,  how- 
ever,  the  case  of  Dickinson  v.  Loveil.  3."i  N. 
H. '.»,  17,  and  18,  is  in  point,  and  is  entirely 
conclusive. 

Judgment  on  the  verdict. 


BRABROOK  v.  BOSTON  FIVE  CENTS  SAV.  BANK. 


79 


BRABROOK  v.  BOSTON  FIVE  CENTS 
SAV.  BANK. 

(104  Mass.  228.) 

Siipii'ino  Judicial  Court  of  Massachusetts.    Suf- 
folli.    March,  1S7U. 

Contract  for  money  hml  and  rpoelved. 
Siihmittc'd  on  the  followin;;  nsrif'''!   facts: 

On  .July  10,  ISC.O,  I)avi(l  KridwMcH,  the  fa- 
ther of  tile  plaintiff,  then  Kliza  H.  Kiiuwles, 
hut  since  inarriccl  to  (J.-oi-.;!'  r.rahrciuk. 
Kave  to  John  T.  Din^lcy  «:i(Hlil.  to  .lc|.iiHit 
with  tlieilifindants.  "If  it  wnuld  he  com- 
petent ti)  piDve  by  parol  eviilence,  it  is 
H^creed  that  DinKJey  informed  David 
Kiiowles  tlial  the  l»y-law«of  the  ilefend- 
nnts  did  not  allow  so  lar>re  a  deposit  in 
tlie  name  of  one  peison,  hnt  tlint  he  conid 
deposit  it  in  the  names  of  liis  children  for 
himself.  Therenpcjn  DiriKley,  liy  tiie  direc- 
tion of  lia  vid  Knowlcs.  deposited  the  same, 
in  equal  proportions,  in  t  lie  name  of  David 
Knowles,  and  his  tl;ri-e  childien,  one  of 
vv'honi  was  the  iilainliff,  took  t herelrirfonr 
booivs  from  the  defemlants.  informed  Da- 
vid KnowleH  of  wjiiit  he  had  done,  and 
showed  him  the  hofiks.  ami  lie  approved 
the  same.  The  entry  in  the  hook  of  the 
defendants,  an<l  in  tlie  pass-liooks.  was 
ns  fidlows:  'David  Knowles,  trustee  for 
Eliza  Knowles,'  with  tlie  date  and 
amount  of  deposit.  The  deposit  remnined 
witli  the  di'fendants  nnchanucd.  e.\ce|)t 
that  snms  from  time  to  time  were  ilrawn 
on  account  of  interest,  hy  Dintcley,  liy  the 
direction  of  David  Knowles,  and  p;iiil  to 
him,  so  as  to  keep  the  wlude  sum  below 
SlIKin,  until  the  death  of  David  Knowles. 
DiiiKley  was  appointed  exi'cntorof  the  will 
of  David  Knowles,  and  assnchclaiu'ed  the 
funds  in  defendants'  hands  as  lielonninH; 
to  his  estate.  All  four  of  the  bank  books 
renuiined  in  the|iossession  of  Dinu'ley  until 
the  dentil  of  his  testa  tor,  and  have  since 
been  in  liis  possession  ns  executor.  The 
defendants'  by-laws  may  be  referred  to  if 
deemed  material.  If,  upon  tliesi- facts,  tlie 
court  should  lie  of  opinion  tliiit  the  plain- 
tiff is  entitled  to  said  liimls,  judtruicnt  is 
to  lie  filtered  for  the  plaintiff  for  the 
amount  in  the  defeniiants' hands;  other- 
wise the  iilaintiff  is  to  Income  nonsuit." 

H.  C.  Ilutchins,  for  plaintiff.  J.  P.  Ilea- 
ly,  for  defendant. 

WELLS,  J.  The  plaintiff  shows  no 
fluht  to  liold  the  money  deposited  with 
the  defendant  by  David  Knowles.  It  wis 
not  money  tlia  t  bel()ii;;ed  to  her  oiiiriiuilly, 
an  was  the  case  in  Farrelly  v.  Ladd,  lil  .\l- 
len.  lL'7,  and  Hunnewell  v.  Lane.  11  Met. 
IChl.  relied  upon  by  the  plain  tiff's  rotinsel. 
The  money  belontteil  to  David  Knowles  in 
Ills  own  rii;ht.  He  was  not  in  fact  trn~tce 
for  Eliza  Knowles,  otherwise  than  liy  the 
form  of  the  deposit.  He  was  nniler  no 
previous  obligation  to  pay  the  money  lo 
her.  or  to  hold  it  for  her  benelit.  The 
voucher  for  the  deposit,  without  the  pro- 
ductlim  of  which,  accordiim  to  the  con- 
ditions under  which  It  was  made,  it  could 
not  be  withdrawn,  was  never  delivered  to 
her,  but  r^'lained  exclusively  In  his  own 
huiids.     Wall  V.  Provident  lustitutioii  tor 


SavinKH,  3  Allen,  90.  The  whole  trnnsnc- 
tion  was  his  own  voluntary  act,  to  which 
she  was  in  no  way  a  parly  or  privy. 
There  was  no  declaration  made  to  her,  or 
to  be  eommiinicateil  to  her,  of  any  inten- 
tion that  the  money  should  lie  hers.  Even 
If  the  form  of  the  deposit  Is  lo  be  lal<en  bh 
conclusive  proof  of  the  existence  of  such  un 
intention  in  his  mind,  the  execution  of 
that  intent  was  not  so  far  complete  an  to 
oiierate  to  pass  the  title.  Knrtwledne  of 
the  nifl.  on  the  part  of  the  donee,  at  the 
time  it  is  mnde,  is  not  essential,  it  Is  triit-, 
in  order  that  It  may  take  effect.  If  the 
net  of  transfer  be  complete  on  the  part  (jf 
the  donor,  subse(|uent  ncreptance  by  the 
donee  before  revoc-ation  will  be  sulHcient. 
Itiit  tlicre  must  lie  Himie  act  of  delivery  out 
of  the  possession  <if  the  donor,  for  the 
purpose  and  with  the  intent  that  the  title 
shall  thereby  pass.  This  principle  Is  cIIh- 
tinctlv  recognized  in  the  caxe  of  .Mincliin 
V.  Merrill,  J  Kdw.  Cli.  :i:!.'t,  cited  by  the 
plain  tiff's  counsel.  In  that  case,  as  well 
ns  in  several  others  of  those  ctled,  there 
was  a  complete  delivery  of  the  suliject  of 
the  Klft  to  a  third  part.v.  In  whose  hands 
It  was  chardcd  with  the  trust,  the  donor 
hnvin;i  parted  with  the  possession  and 
control.  In  none  of  them  Is  there  a  denial 
of  the  principle  above  stated.  In  Howard 
V.  Windham  Connt.v  .Saviims  Bank,  41) 
Verm,  rvi",  the  deposit  was  made  directly 
to  the  credit  of  the  inteiided  donee,  mak- 
ing it  a  completed  jjift.  'I'he  deposit  hy 
Knowles  was  entered  In  his  own  name 
and  to  his  own  cre<lit.  The  lejral  title, 
and  rin'it  to  draw  money  ho  deposited,  re- 
mains with  the  depositor.  There  was  no 
direction  or  niifhorit.v  for  the  bank  to|iay 
it  to  the  plaintiff.  The  form  of  the  depos- 
it does  not  imply  such  an  intent;  nor  any 
obligation  or  riuht,  on  the  part  of  the 
bank,  HU  to  pay  it  over.  The  declara  lion 
of  trust  is  evidence  that  Knowles.  the 
depositor,  held  the  fiiiiil  in  some  inaiiner 
for  the  benelit  of  the  person  named  as 
cestui  que  trust.  Rut  it  clld  not,  of  itself, 
transfer  to  her  the  possession,  nor  the 
ri^ilit  of  iiossession  ;  nor  constitute  a  lejrnl 
title  i:i  her.  A  deed,  executed  anil  put  on 
record  by  the  Kraiitor.  does  not  pass  the 
title  without  some  further  act  of  deliver.v 
and  acceptance.  Maynard  v.  Mnynard, 
in  -Mass.  4."ii'i.  Samson  v.  Thornton.  H 
Mel.  l7.">.  Rut  if  the  urantor  intend  Ihat 
the  grantee  shall  receive  it  from  the  reels- 
ter,  or  if  tliere  be  a  previous  n(;reenient 
that  the  deed  when  niaileshall  be  so  deliv- 
ered at  tile  reuistr.v,  it  will  be  effectunl  aa 
a  delivery.  Shaw  v.  llayward,  7  Cush. 
17(1.  So  if  there  be  an  actual  trust,  and 
an  oblinalion  to  make  the  transfer  for  the 
security  of  that  trust,  the  continued  pos- 
session of  the  instrument  by  thepei-soii 
who  executed  it,  lieinc  also  its  proper  cus- 
todian for  the  cestui  <)ne  trust,  is  consist- 
ent with  an  nssijrnment  completed  by  de- 
livery ;  and  a  le^al  delivery  to  pass  the 
titleWllI  be  inferred  from  very  sli;;ht  evi- 
dinee.  Moore  v.  Haielton.  'J  Allen.  lltL'. 
r.ut  there  miist  he  delivery  or  some  eqiilv. 
alent  act  with  intent  to  pass  the  title. 
Chase  V  llrecd.  .'i  Cray. -14(1.  When  tlielii- 
slriiiiient  is  la  fnlliliiienl  of  a  le^al  obliira- 
tioii.  the  Intent  may  lie  inferred  from  that 
tart.     Perhaps  the  same  wo'ild  bo    true  of 


80 


BRABROOK  v.  BOSTON  FIVE  CENTS  SAV.  BANK. 


a  moral  obligation,  such  as  jjrovislon  for 
wife  or  cliilil.  Astreeii  v.  FlniiHftnn.a  Edw. 
Oil.  27').  We  prestimc  the  decision  in  Wit- 
Siel  V.  Cliapin.  3  Bradf.  3SG,  cited  by  the 
plaintiff,  was  made  upon  some  considera. 
tioiis  of  tliis  nature.  That  decision  recog- 
nizes tliat  it  is  a  question  of  intent.  See 
also  Gransiac  v.  Arden,  10  .lohns.  2!)3; 
(Joortrich  v.  Walker,  1  Johns.  Cas.  251. 
Assuniin;^  in  tliis  case  that  tlie  deposit  and 
declaration  of  trust  was  a  suflicient  ajt  of 
delivery  to  pass  the  title,  if  such  were  the 
intent,  we  think  the  facts  agreed  show 
clearly  tliat  such  was  not  the  intent  of  the 
depositor.  On  the  contrary,  it  would  ap- 
pear that  it  was  the  intention  of  Knowles 
to  deijosit  tlie  whole  money  as  his  own; 
and  that  the  form  of  deposit  was  adopted 
for  the  sole  purpose  of  evadinj;  a  l)y-law 
of  the  bank  and  a  provision  of  tlie  stat- 
utes, limiting  the  amount  that  could  be 
received  from  any  one  depositor  to  one 
thousand  dollars. 

1.  The  plaintiff  contends  that  the  writ- 
ten declaration  of  trust  is  conclusive,  and 
ol>jects  to  the  competency  of  evidence  to 
prove  the  facts  relied  on  in  defence;  first, 
becsiuse  it  violates  the  rule  excluding  pa- 
nd  evidence  to  contradict  or  vary  the 
terms  of  a  written  instrument.  Itut  that 
is  a  rule  which  applies  to  suite  upon  the 
instrument  and  between  the  parties  to  it. 
1  (jreenl.  Ev.  §  279.  The  plain  tiff  is  no  par- 
ty to  the  contract  between  David  Knowles 
and  the  defendant.  !She  could  maintain 
no  action  upon  it.  If  she  can  recover  at 
all.  it  is  because  the  nitmey  l)elongsto  lier, 
and  the  trust,  being  a  mere  naked  trust 
for  her  benefit,  is  terminable  at  her  pleas- 
ure. The  contract  of  deposit  is  collateral 
to  her  title,  which  depends  upon  her  rela- 
tions with  David  Knowles.  As  to  her  and 
her  claim,  whether  upon  the  bank  or  up- 
on David  Knowles,  the  contract  is  merely 
evidence  by  way  of  admission,  subject  to 
be  controlled  by  any  competent  evidence 
8S  to  the  actual  facts.  In  Mct'luskey  v. 
Provident  Institution  for  .Savings,  103 
Mass.  300,  a  deposit  in  the  plaintiff's  own 
name  was  controlled  by  proof  that  the 
mrmey  deposited  belonged  in  fact  to  the 
estate  of  her  deceased  husband. 

2.  For  similar  reasons  the  plaintiff  can- 
not sot  up,  as  an  estoppel  against  the  de- 
fendant or  against  David  Knowles.  the 
by-law  of  the  bank  provi(Jing  that  "any 
depositor  may  designate,  at  the  time  of 


making  the  depo.sit,  the  period  for  which 
he  is  desirous  that  the  same  shall  remain 
in  the  bank,  and  the  person  for  whose 
benefit  the  same  is  made;  anil  snch  depos- 
itor, and  his  legal  representative,  shall  bo 
bound  by  such  conditions,  by  him  volun- 
tarily anne.ved  to  his  deposit."  She  is  a 
stranger  to  that  contract.  She  does  not 
claim  under  it  as  nis  legal  representative, 
but  by  a  superior  right,  of  vvhidi  the  con- 
tract is  the  evidence.  There  can  be  no  es- 
toi)iJel  where  there  is  no  mutuality  or 
privity.  1  Greenl.  Ev.  §§  IfsU,  204,  211. 
Merrifield  v.  Parritt,  11  Cush.  .TOO,  59S. 
.Sprague  v.  Oakes,  19  Pick.  4.5.5,  458. 
U  orcester  v.  Green,  2  Pick. 425.  Braintree 
V.  Hiiigham,  17  Mass.  432.  If.  ui)on  due 
presentation  of  the  book,  the  money  had 
been  paid  to  her,  this  provision  in  the  con- 
tract of  deposit  might  have  availed  the 
bank  as  a  defence  against  the  depositor 
or  his  legal  reiiresentatives.  But  it  can 
have  no  force  as  an  estoppel,  except  when 
so  set  up  by  the  bank. 

3.  Neither  can  the  plaintiff  avail  herself 
of  the  fact  that  the  alleged  purpose  of  Da- 
vid Knowles,  in  making  the  deposits  in 
the  form  he  did,  was  an  evasion  or  viola- 
tion of  law.  Whatever  effect  any  illegali- 
ty on  the  part  of  Knowles  might  have  up- 
on his  right  to  recover  against  the  bank, 
it  cannot  operate  to  confer  any  title  or  le- 
gal ]-iglit  upon  the  plaintiff.  The  effect  of 
illegality  is  to  create  a  disability  to  sue, 
or  to  derive  any  legal  rightfroni  the  trans- 
action affected  by  it.  The  plaintiff's  right 
to  recover  depends  upon  proof  of  an  intent 
to  make  an  absolute  gift  of  this  money 
to  her.  The  defendant  is  not  precluded 
from  disproving  that  intent  because  the 
evidence  b.y  which  it  is  to  be  disproved 
tends  also  to  show  an  unlawful  act  or 
pur])ose  in  a  transaction  between  tl)e  de- 
fendant and  David  Knowles. 

We  have  not  considered  the  technical 
question  whether  any  action  could  be 
maintained  between  these  parties,  for 
money  so  deposited,  because  that  ques- 
tion seemed  to  be  waived  bj'  the  submis- 
sion upon  agreed  facts,  providing  for  a 
judgnientfor  the  plaintiff  if  the  court  shall 
1)6  of  opinion  that  she  "is  entitled  to  said 
funds. " 

Upon  the  facts  stated,  we  are  of  opinion 
that  she  is  not  so  entitled;  and.  accord- 
ing to  the  agreement,  the  plaintiff  is  to  be- 
come nonsuit. 


BRADFORD  v.  MANLY. 


83 


BRADFORD  v.  MANLY. 

m  Mass.  130.) 

Siipremp   .Tiidifial   Court    of  M'assarhiisotts. 
Suffolk.    March  Term.  181G. 

AaHUiapHiton  dlvprH  HpwinI  counts,  to 
recover  the  (Mfference  in  value  bet  weon  two 
cuHkH  of  cloveH,  aliened  to  be  Hold  by 
Huiiiple  to  tlie  plaintiff,  and  the  cloveH  act- 
ually delivered  in  virlueof  theHale.  At  the 
trial,  which  vvbh  had  on  the  general  insue, 
before  the  chief  ju.stlce,  at  the  laHt  Novem- 
ber term  in  thiw  county,  the  plaintiff  pro- 
ducefl  a  bill  of  parceln  of  (!02  poundH  of 
cloven  at  one  dollar  fifty  centB  per  pound, 
on  which  payment  wan  acknowleiljied  by 
thR  defendant  to  liave  been  received  in  the  | 
plaintiff's  note  payable'  in  sixty  days. 
He  then  |)ro(liiced  a  witness,  who  tCHtiticd 
that  on  the  -Ith  of  .January,  l!Sl4,  the  <lc- 
fendant  I'linie  to  the  plaintlff'H  store,  with 
u  sample  of  cloveH  in  a  paper,  and  asked 
the  plaintiff  if  he  wished  to  purchase  .'■onie 
cloves.  The  witness  examined  the  sam- 
ple, and  found  the  doves  to  bo  of  the  best 
quality  of  Cayennecloves;  and  the  defend- 
ant said,  at  a  subsequent  time,  that  the 
sample  he  Hliowed  was  of  fair  cloves.  On 
the  same  day  that  the|)urchase  was  made 
and  the  bill  of  parcels  niven,  the  casks 
were  removed  to  the  plaintiff's  store,  the 
prICB  being  that  of  cloveH  of  the  best  (jual- 
ity. 

It  was  in  evidence,  that  the  sample  was 
not  taken  from  the  casks  sold,  but  from 
an  open  barrel,  out  of  which  those  ciisks 
had  been  tilled,  they  not  l)einj;  before  <iuile 
full:  but  the  defendant  did  not  know  from 
whence  the  sample  came.  The  market 
price  of  this  article  having  fallen  imme- 
diately after  the  sale,  the  plaintiff  made 
no  atlen)|)t  to  sell  the  cloves;  and  the 
casks  were  not  opcnuil,  until  May,  isl.'), 
when  there  bein;^  some  ai)plication  for  the 
purchase  of  them,  they  were  opened,  and 
were  found  to  contain  a  mi.xture  of 
(Cayenne  cloves  and  an  inferior  and  dis- 
tinct H|)P(ies  of  the  sjime  article,  the 
)j;rowth  of  the  Kast  Inilies,  in  the  propoi-- 
tion  of  one-third  of  the  latter,  which  was 
worth  from  a  fitlh  to  a  quarter  less  than 
the  former.  Whether  the  casks  had  been 
opened,  or  exposed,  or  mixed,  while  in 
possession  of  the  plaintiff,  were  qucslinns 
duly  HUb.nitted  to  the  jury.  liefore  Insti- 
tuting this  suit,  and  after  the  delect  whk 
discovered,  the  plaintiff  offered  to  return 
the  cloves,  but  tlie  offer  was  not  accepted. 
The  defendant  objected  to  the  ndmission 
of  any  evidence,  other  than  the  bill  of 
parci'1.4,  ( which  was  of  cloves  generally 
without  <Iesii;natiny:  the  kind,)  to  prove 
tliat  any  distinct  species  or  (luality  of  the 
article  was  sold.  I'.ut  the  (dijectinn  was 
overruled,  and  the  jury  were  instructed 
that,  althouu;!)  no  fraud  was  proved  or 
.Hueiiested.anil  no  express  warranty,  other 
than  what  Tniy;ht  be  inferred  from  the  ex- 
hibition of  the  sample,  was  proved:  yet  if 
they  believed  from  the  evidence,  that  the 
purchase  was  made  upon  the  confidence 
that  the  whole  quantity  was  represented 
by  the  sample:  ami  that  it  was  the  inten- 
tion of  the  di-fendant  so  to  represent  by 
exhibiting;  the  sample;  anil  that  the  ar- 
ticle, when    sold   and    delivered,  was   nin-1 


terially  different  In  quality  an<l  value  from 
that  which  was  shown  in  tin.-  sample; 
they  (jUKht  to  find  a  verdict  for  the  plain- 
tiff, and  ansesH  in  damaKes  the  difference 
In  value  at  the  time  of  the  sale.  The  jury 
returned  a  verdict  for  the  plaintiff,  hnv- 
loK  found  tlie  facts  Hi)eclally  as  abovp 
stateil,  unil  having  also  found  that  there 
WMH  no  fraud  in  the  sale  on  the  part  of 
tlie  defendant.  The  defendant  exci'pted 
acainst  the  direction  of  the  judRe,  and 
moved  for  a  new  trial  on  that  «round, 
and  also  on  account  of  the  admission  of 
parol  evidence  to  prove  the  contract. 

Uavis,  .Sol.  (Jen.,  and  Thatcher,  for 
plaintiff.     Shaw,  for  defendant. 

PARKKIf,  ('.  .1.,  delivered  the  opinion 
of  the  court.— The  first  point  taken  by  the 
defenilant's  counsel  is.  that  parol  evidence 
was  admitted,  to  ciintrol  or  explain  the 
contract  in  writiu,;,  which  subsisted  be- 
tween the  parties. 

The  objection  goes  upon  the  HUppoHltlon 
that  a  common  liill  of  parcels,  sjiven  upon 
or  after  the  purchase  of  uoodw,  Ih  evidence, 
and  the  only  proper  evidence  of  such  a 
contract.  I'.ut  It  is  not  so.  The  barcaln 
is  usually  made  verbally,  and  without  any 
intention  that  it  shall  be  put  in  writing: 
and  the  bill  of  parcels  is  intended  only  to 
show  that  the  uoods  have  been  purchased 
and  paid  for.  It  is  hcldom  particular,  or 
descriptive  of  the  whole  contract  between 
the  parties.  Hut  if  it  were  not  so,  the 
jiaper  Introiluced  in  thin  case  Is  aniblt;u- 
ous  with  rcspi'ct  to  the  sulijcct  of  the  har- 
i;ain  ;  an<l  the  amldi^nity  Ih  talent,  ho  that 
parol  evidence  may  be  admitted  to  ex- 
plain it.  li  states  only  that  ""J  casks  o( 
cloves"  were  purchased:  leavini;  it  uncer- 
tain  what  kind  of  cloves,  of  which  it  ap- 
pears in  the  case  that  there  are  at  least 
two  kinds,  diifeiiii;;  mati'rially  in  (|uallly 
and  value.  We  think  this  objection  was 
properly  overruled. 

We  may  then  come  to  the  principal  ques- 
tion, viz.  Whether  theevldence  in  thecnuse 
proved  a  contract  to  sell  cloveH  of  a 
iliflerent  kind  from  those  which  were  de- 
livei^d.  Tlie  defendant  exhibiteil  a  Hom- 
pie,  liy  which  the  plaintiff  |)urchaHed. 
.\niony:  faircleal?rs  there  could  lie  no  (|ueH- 
tion  but  the  vendor  intendeil  to  represent 
that  the  article  sold  was  like  the  sample 
exhibited:  and  it  would  be  to  be  lamented, 
if  the  law  should  refuse  its  aid  t«  tlip 
party,  who  hud  been  deceived  In  a  pur- 
chase so  made. 

The  objection  Is.  that  no  action  upon  n 
warranty  can  be  malntaineil.  unlcHs  the 
warranty  Ih  express;  and  that  no  t)ther 
action  can  be  maintained,  tinless  there  be 
a  false  allirmatlon  resprctinir  the  quality 
of  the  article.  If  such  were  the  law.  It 
woulil  very  much  embarrass  the  iqiera- 
tions  of  trade,  which  are  frequently  car- 
ried iiii  to  a  lar^e  amount  by  sampIcH  of 
the  articles  bou;ilit  and  scdd. 

The  authorities  cited  by  the  di'fendnnt's 
counsel  have  been  carefully  looked  lnt<i; 
anil  we  think  they  do  not  militate  with 
this  decision:  unless  It  be  the  case  of  the 
liezoar  stone,'  which  we  think  would  not 

'  Chandelor  vs.   lyopus,  Cro.  Jnc.  -1,  Dyer,  75. 


84 


BRADFORD  o.  MANI.T. 


now  he  received  as  law  in  England:  cer- 
tainly not  in  our  country.  The  vendor 
sold  tlie  stone  as  and  for  a  bezoar  stone, 
to  one  uiiae(iuainted  witli  siieli  articles, 
and  it  turned  out  to  be  of  inferior  value 
The  court  held  tlmt  no  action  would  lie; 
and  some  of  the  judges  slated  that  even 
if  the  vendor  had  known  that  it  was  not 
a  hezoar,  and  it  had  been  so  alleged,  an 
action  conld  not  l)p  maintained  with- 
out an  express  warranty.— The  other  case 
is  that  of  Parkinson  vs.  Lee."  There  the 
hops  sold  were  of  the  same  kind  and  qual- 
ity as  the  sample:  but  there  was  an  un- 
known deterioration  by  fermentation, 
caused  by  the  arower  of  the  hops,  and 
not  by  the  vendor.  Hops  being  usually 
sold  in  pockets,  and  the  quality  ascer- 
tained by  sample,  it  was  held  that  the 
innocent  vendor  was  not  responsil)le  to 
the  vendee,  for  an  unknown  inherent  de- 
fect, without  an  express  warranty.  That 
case  does  not  militate  with  our  opinion 
in  the  case  at  bar. 

The  fair  import  of  the  exhibition  of  a 
sample  is,  that  the  article  proposed  to  be 
sold  is  like  that  which  is  shown  as  a  par- 
cel of  the  article-  it  is  intended  to  save  the 
purchaser  the  trouble  of  examining  the 
whole  quantity.  It  certainlj'  means  as 
much  as  this,  "The  thins  1  offer  to  sell  is 
of  the  same  kind,  and  essentially  of  the 
same  quality, as  the  specimen  I  give  you." 
1  do  not  know  that  it  would  be  going  too 
far  to  say  that  it  amounts  to  a  declara- 
tion, that  it  is  equally  sound  and  good. 
But  it  is  not  necessary  to  go  so  far  in  the 
present  case;  and  we  are  not  disposed  to 
question  the  correctness  of  the  decision  in 
Parkinson  vs.  Lee. 

It  is  expressly  found  by  the  jury  in  the 
case  at  bar,  that  tlie  cloves  delivered  were 
different  in  kind  from  those  wliich  com- 
posed thesample,  and  inferior  in  value,  not 
troni  decay  or  exposure;  but  that  there  is 
a  specific  difference  in  the  respective  plants 
from  which  they  are  produced.  Surely  if 
a  man  were  to  exhibit  to  nie  a  parcel  of 
hyson  tea  as  a  saniiile,  to  induce  me  to 
buy  a  chest,  and  I  should  pay  him  the 
price  of  hyson,  and  he  should  deliver  me 
a  chest  of  bohea  or  souchong;  I  might  re- 
cover the  difference  in  value.  If  he  should 
refuse  to  do  me  justice,  although  he  did 
not  expressly  warrant  that  the  tea  in  the 
chest  was  the  same  as  that  in  the  sample. 
Indeed  the  exhibition  of  a  sample  must, 
in  all  fair  rlealing,  stand  in  lieu  of  a  war- 
ranty or  affirmation.  It  is  a  silent,  sym- 
bolical warranty,  perfectly  understood  by 
the  parties,  and  adopted  and  used  for  the 
convenience  of  trade. 

The  cases  must  be  very  strong,  to  estab- 


'2  East,  314. 


lish  a  principle  so  unjust,  and  so  produc- 
tive of  distrust  and  jealousy  among 
traders,  as  that  contended  for  by  tlje  de- 
fendant's counsel.  For  what  purpose  is 
the  sample  exhibited,  unless  it  is  intended 
as  a  representative  of  the  thing  to  be 
sold?  What  would  an  honouralile  mer- 
chant say  if,  when  he  took  from  a  mass 
of  sugar  or  coffee  a  small  parcel,  and  of- 
fered to  sell  by  it,  the  man  who  was  deal- 
ing with  him,  should  ask  him  it  it  was  a 
fair  sample,  and  call  upon  hira  to  warrant 
it  so"'  Mercantile  honour  would  instantly 
take  the  alarm ;  and  if  such  questions 
should  become  necessary,  there  would  be 
no  need  of  that  honour,  which  happily  is 
now  general  and  almost  universally  relied 
upon.  That  there  is  not  an  unknown  atid 
invisible  defect,  owing  to  natural  causes, 
or  to  previous  management  by  some  for- 
mer dealer,  he  may  not  be  presumed  to 
affirm  when  he  shows  the  sample;  and  as 
to  these  particulars  an  express  warranty 
may  be  required,  consistently  with  confi- 
dence in  the  fair  dealing  of  the  vendor. 
But  that  the  thing  is  the  sanie.genericallj' 
and  specifically,  as  that  which  he  shows 
for  it,  he  certainly  undertakes,  and  If  a 
different  thing  is  deliv3red,  he  does  not 
perform  his  contract,  and  must  pay  the 
difference,  or  receive  the  thing  back  and 
rescind  the  bargain,  if  it  is  offered  him. 

A  case  similar  to  this  in  principle  came 
before  me  two  or  three  years  ago  at  nisi 
prius.  An  advertisement  appeared  in  the 
papers,  which  was  published  by  a  very  re- 
spectable mercantile  hou-ie,  offering  for 
sale  good  Caraccas  cocoa.  The  plaintiff 
made  a  jiurchase  of  a  considerable  quan- 
tit^i,  and  shipped  it  to  Spain;  having  ex- 
amined it  at  the  store  before  lie  purchased  ; 
liut  he  did  not  know  the  difference  be- 
tween Caraccas  and  other  cocoa.  In  the 
market  to  which  he  shipped  it,  there  was 
a  considerable  difference  in  value,  in  favor 
of  the  Caraccas.  It  was  proved  that  the 
cocoa  was  of  the  growth  of  some  other 
place,  and  that  it  was  not  worth  so  much 
in  that  market.  I  held  that  the  advertise- 
ment was  equal  to  an  express  warranty; 
and  the  jury  gave  damages  accordingly. 
The  defendants  had  eminent  counsel,  and 
they  thought  of  saving  the  question;  but 
afterwards  abandoned  it,  and  suffered 
judgment  to  go.  Surely  if  a  sample  of 
Caraccas  cocoa  had  been  shown  to  the 
purchaser,  and  any  other  cocoa  had  been 
delivered  to  hiju,  the  case  would  not  have 
been  less  strong. 

We  are  all  decidedly  of  the  opinion,  that 
a  sale  by  sample  is  tantamount  to  an  ex- 
press warranty  that  the  sample  is  a  true 
representative  of  the  kind.  There  must 
therefore  be  entered  judgment  according 
to  the  verdict. 


BRIDGFORD  v.  CROCKER. 


87 


EltrOGFORD  V.  CROCKER. 

(CO  N.  Y.  627.) 

Crmrt  of  Appeals  of   New  York.    Feb.   23, 
1875. 

Action  by  Jnines  Briflgford  asninHt 
Leuiuel  L.  Crocker,  ob  survivor  of  tlie  firm 
of  L.  Crocker  &  Co.,  to  recover  ilaniaKCH 
for  the  refuHal  of  one  Pat  (invin  to  receive 
certain  cattle  wbicli  nl"i>>t>N  claimed  ho 
had  purchased  aa  asent  for  said  firm,  and 
to  recover  also  the  amount  of  a  check 
drawn  hy  said  firm  in  favor  of  Gavin,  and 
by  him  indorsed  to  i)laintiff,  in  payment 
lor  certain  other  cattle  delivered  by  plain- 
tiff to  said  Uavin,  and  received  by  him. 
Plaintiff  held  the  cattle  which  Gavin  had 
refnsed  to  receive  until  the  folloning 
apriDK,  when  he  sold  tlieni  at  an  advanced 
price,  and  defendant  claims  the  benefit  of 
such  sale.  There  was  a  jiidjiment  in  favor 
of  plaintiff,  and  defendant  appeals. 

E.  C.  Sprague.  for  appellant.  George 
Wadsworth,  for  respondent. 

GROVER,  J.  The  questions  raised  upon 
this  appeal  by  the  c(>unsel  for  the  appel- 
lant arise  upon  the  defense  sought  to  be 
made  against  his  liability  to  the  plaintiff 
as  drawer  of  the  check  upon  which  the 
action  was  brought.  This  assiimes  tliat  a 
prima  facie  liability  had  been  shown  by 
the  plaintiff.  The  case  shows  that  the 
check  in  suit  was  one  of  a  large  number 
made  by  the  tlrawers  in  the  spring  and 
summer  of  l.S(i7,  amounting  in  all  to  J.'iO,- 
00(1,  payable  to  the  order  of  Gavin,  which 
during  the  spring  and  summer  were  de- 
livered by  the  drawers  to  Gavin,  upon  an 
agreement,  as  they  claimed,  that  heshould 
use  them  in  the  west  in  the  purchase  of 
stock  by  him  for  the  drawers,  take  such 
stock  to  and  sell  it  in  Chicago,  and  remit 
the  proceeds  to  the  drawers  for  the  pay- 
ment of  the  checks,  and  that  he  sh<nilil  re- 
ceive for  his  services  in  transacting  the 
business  a  portion  of  the  profits.  Evi- 
dence was  given  showing  that  the  check 
In  suit  was  indorsed  by  Gavin  to  the 
plaintiff.  In  payment  for  cattle  i)urchased 
of  him,  but  the  jiroof  tended  to,  and,  as 
the  trial  judge  held,  diil  show,  that  the 
cattle  were  not  i)urchased  for  the  defend- 
ants pursuant  to  their  agreement  with 
Gavin,  but  for  Gavin  &  Kelly.  The  judge 
held  that  this  was  a  diversion  of  tlicclie^'k 
by  Gavin  from  the  purpose  for  wliii-h  it 
was  delivereii  to  him  by  the  appellant, 
and  that  the  latter  was  not  liable  unless 
he  had  assented  to  such  use  of  the  check 
by  Gavin.  The  counsel  for  the  respondent 
insists  that,  if  the  proof  was  insullicient 
to  show  such  assent,  still  the  recovery 
thereon  should  be  sustained  upon  various 
other  grounds  suggested  by  him.  I  think 
It  unnecessary  to  determine  whether  the 
plaintiff  would  hav  been  entitled  to  re- 
cover upon  an.v  of  tliem,  as  the  case  was 
tried  solely  upon  the  theory,  and  the  judge 
held,  that  the  plaintiff  could  only  recover 
by  showing  that  the  defemlant  assented 
to  the  use  made  of  the  check  by  Gavin.  It 
is  impossible  to  see  what  further  proof 
affecting  the  other  questions  now  sought 
to  be  made  by  the  respondent  might  have 


been  given  by  the  defendant  had  the  rul- 
ing of  the  judge  been  otherwise.  The  only 
question  as  to  the  plaintiff's  right  to  re- 
cover upon  the  check  is,  I  think,  whether 
the  evidence  was  such  as  made  the  ques- 
tion whether  the  defendant  assented  to 
the  use  made  by  Gavin  of  the  check  one 
which  should  be  determined  by  the  jury, 
or  whether  the  court  should  have  dlrectefl 
a  verdict  thereon  for  the  defendant  upon 
this  question.  The  proof  of  the  plaintiff 
was  circumstantial;  that  of  the  defend- 
ant direct;  the  latter  consisting  of  the 
testimony  of  the  defendant  and  (iavin 
that  the  forinef  had  never  assented  to  or 
knew  of  any  use  made  of  any  of  the  checks 
by  Gavin,  other  than  as  provideil  by  the 
agreement.  On  the  part  of  the  |>laintiff  it 
appeared  that  the  defendant  reposeil  un- 
limited conHdence  in  Gavin  ;  that  he  deliv- 
ered to  him  this  large  amount  of  checks, 
and  intrusted  him  to  go  int<j  the  western 
states,  and  operate  with  them  in  the  pur- 
chase of  cattle,  sell  the  same,  and  with 
the  proceeds  pro  vide  for  the  payment  of  the 
checks;  that  (Javin,  months  before  Indors- 
ing the  check  in  uuestion  to  the  plaintiO, 
used  the  checks  of  the  defendant  to  pay 
for  cattle  purchased  by  him  for  himself  and 
Kelly  to  a  large  amount :  that  the  defend- 
ant knew  that  these  checks  were  issued  by 
Gavin  from  their  presenttnent  tothedraw- 
er  for  payment,  some  of  which  were  paid, 
and  others  protested  for  noiipaynu-nt.  al- 
though ultimately  provided  for  by  Uavin. 
This  presented  a  question  for  the  jury  as 
to  whether,  after  the  lapse  of  months,  the 
defendant  had  made  inquiry  and  ascer- 
tained the  purposes  for  which  this  large 
amount  of  checks  had  been  used  by  Gavin. 
This  testimony  tends  to  show  that  he  had 
not,  but  it  is  opposed  to,  strong  proba- 
bility created  by  the  circumstances.  That 
a  man  should  furnish  to  another  $.'>0,000 
of  his  checks  to  operate  under  such  an 
agreement  as  is  plain,  should  know  that 
the  checks,  to  a  large  amount,  were  being 
used,  and  that  his  credit  was  suffering  by 
I)ermitting  some  of  them  to  go  to  protest, 
and  should  not  fur  months  make  any  in- 
quiry into  the  operations  of  his  agent,  or 
endeavor  to  ascertain  whether  the  busi- 
ness was  successful,  is  so  improbable  that 
I  think  a  jury  fully  justified  in  not  credit- 
ing It.  It  is  obvious  that  the  defendant, 
if  he  inquired,  could  have  readily  ascer- 
tained the  purposes  for  which  the  checks 
had  been  used.  I  think  the  question  of  the 
assent  of  the  defendant  to  the  use  of  the 
checks  by  Gavin  to  pay  for  stock  pur- 
chased by  him  for  himself,  or  for  himself 
and  Kelly,  was  not  only  one  for  the  deter- 
mination of  the  jury,  but  that  the  verdict 
that  he  did  assent  to  such  use  was  cor- 
rect. A  man  ought  not  to  complain  of  a 
verdict  tinding  that  he  paid  some  atten- 
tion to  his  important  interests,  hoving 
every  opportunity  and  indurement  so  to 
do.  "although  he  may  Insist  that  he  did 
not.  Cnder  the  remarkable  conduct  uf  the 
defendant,  as  he  claims  It  to  have  Itoon, 
the  jury  might  have  thought  that  there 
was  some  understanding  between  him 
and  (iavin  that  the  stork  was  to  be  pur- 
chased for  the  ilefendant  in  case  money 
was  made  thereon,  and  in  that  event  the 
checks  given   in    payment   therefor  paid. 


88 


BRIDGFOUD  v.  CROCKER. 


but  thatincase  otlosstlie  purchasesliould 
bo  regarded  as  made  for  some  one  else,  so 
as  to  erade  payment  of  such  checks. 

The  rule  of  damages  as  to  the  cattle  not 
taken  by  Gavin  of  the  plaintiff,  pnrsuant 
to  the  contract,  was  correct.  That  was 
that  the  plaintiff  was  entitled  to  recover 
upon  the  failure  of  Gavin  to  take  and  pay 
for  the  cattle,  as  required  by  his  contract, 
the  difference  between  the  contract  price 
and  the  then  market  value.  The  plaintiff 
had  a  right  to  tender  the  cattle,  and  sue 
Gavin  for  the  price  agreed  to  be  paid,  or 
he  could,  at  his  election,  keep  the  cattle  as 
his, and  recoverhis  damages  forthebreach 
the  difference  between  the  contract  price 
and  then  market  value.  Sedgw.  Dam.  (.5tli 
Ed.)  313,  and  cases  cited  in  note  3.  The 
plaintiff  in  the  present  case  chose  to  adopt 
the  latter  course,  and,  in  case  the  market 
fell  subsequently.  It  was  his  loss;  if  It  im- 
proved, it   was    his   sain.    The  time  at 


which  the  damages  were  to  be  fixed,  when 
the  vendor,  as  in  the  present  case,  chooses 
to  retain  the  property,  is  that  fixed  for 
the  performance  of  the  contract.  Dustan 
V.  Andrew,  10  Sosw.  130.  So  far  as  it 
countenances  any  different  rule  in  this  re- 
spect, it  was  not  well  considered,  and  can- 
not be  regarded  as  law.  It  matters  not  to 
the  defendant  what  tlie  plaintiff  got  U>r 
the  cattle  six  months  or  any  other  time 
after  the  breach  of  the  contract  by  Gavin 
to  take  and  pay  for  them.  It  appears 
that  cattle  rose  in  the  market  after  this. 
This  was  the  good  fortune  of  the  plaintiff, 
of  which  the  defendant  cannot  avail  him- 
self. 

The  Judgment  appealed  must  be  af- 
firmed. 

NOTE.  The  foregoing  is  JiidKe  GROVEK'S 
opinion  in  full.  The  report  in  60  N.  Y.  627, 
gives  only  a  memorandum  of  the  decision. 


BROOKS  V.  POWERS. 


91 


BROOKS  V.  rOWKRS. 

(15  Mass.  244.) 

Supreme  Judicial  Court  of  Jfassachusetts. 
Worcester.    Sept.  Term,  1818. 

Replevin  of  a  pnlr  of  oxen  and  other 
cattle,  attached  by  the  defcnilant,  a  con- 
Htalile,  oil  an  oiJKiiial  writ  af;ainHt  one 
Stephen  Witt.  The  defenilatit  pleaded 
property  In  Witt,  Ira verned  tlie  property 
of  lirooks,  and  avowed  for  a  return.  The 
plaintiff  rei)lii'i]  property  in  himself,  u|)on 
whicli  iHMUe  waH  joined.  Upon  the  trial  of 
thlH  iHHue  before  Putnam,  .J.,  it  ajipeared 
In  evidence  that  Wilt,  durinj;  the  years 
ISIB  and  1M17.  lived  on  a  farm  owned  by 
the  plaintiff,  who  liad  leased  the  Baino  to 
Witt  for  tho.se  years,  n)akin^  a  distinct 
leaHe  for  each  year,  coninieminti  on  the 
let  i>f  April.  A  few  days  before  the  at- 
tuchinent  by  the  defendant,  viz.  on  the 
14th  of  April,  1S17,  Witt  f;avc  to  the  plain- 
tiff a  bill  of  sale  of  the  cattle,  and  made  n 
delivery  of  tliem  on  tlie  farm,  in  payment 
of  a  part  of  the  rent  for  the  preceding 
year,  and  of  tlie  whole  for  the  year  then 
ensuing;  except  the  sum  of  three  dollars, 
for  which  Witt  gave  his  nolo  to  the  plain- 
tiff. Witt  and  the  plaintiff  then  a^jreed, 
that  Witt  should  have  tlie  oxen,  t(»  carry 
on  the  work  of  the  farm  that  year,  for 
which  he  was  to  support  them  free  of  ex- 
pensi'  to  the  plaintiff :  and  it  was  further 
agreed  that  tlie  ()laintiff  miKht  work  the 
oxen,  when  Witt  had  no  occasion  to  work 
them  on  the  farm  himself.  It  was  further 
afcreedthat  Witt  sliould  pasture  the  other 
cattle  for  the  plaintiff,  for  which  he  was 
to  pay  the  customary  price.  The  cattle 
were  in  the  possession  lU'  Witt,  after  the 
sale,  in  pursuance  of  saiil  aKreement,  un- 
til they  were  attached  as  afuresaid.  It 
was  likewise  proved  that  Witt,  at  the 
time  of  the  sale  to  the  plaintiff,  was  the 
owner  and  in  actual  possession  of  the 
cattle,  of  a  part  of    which  he  had  been  the 


owner,  and  In  the  continued  poRsesfilon, 
for  a  louK  time  before  tlie  sale,  and  that 
the  plaintiff  had  never  had  the  property 
or  possession  therfof  before  the  sale.  The 
judue  charged  the  jury,  that  If  tiiey  were 
satistie  I  that  the  cattle  were  sold  anil  <lc- 
livered  in  the  manner  and  for  the  coiisid- 
eration  Ktated,  the  circumstance  of  Witt'8 
retainiiiK  the  posHCssion  ot  them,  for  the 
purpose  <^f  pasturing  them,  and  of  the 
plaintiff's  [jermittint;  him  to  use  the  oxen, 
would  not  be  conclusive  evidence  of  fraud, 
so  as  to  avoid  the  sale  an  to  creditors; 
but  was  one  of  the  circumstances,  which 
was  proper  to  be  submitteil  to  the  jury, 
as  tending  to  prove  the  sale  fraudulent  as 
to  them;  and  that  if.  upon  considering 
the  whole  evidence,  they  nliould  believe 
the  sale  to  have  t-een  bona  tide  and  for  a 
good  consideration,  and  not  marie  with 
a  view  to  defraud  creditors,  their  verdict 
should  be  for  the  plaintiff.  And  a  verdict 
being  so  returned,  the  defendant  filed  hia 
exceptions  to  the  said  opinion  of  the 
judge. 

Lincoln,  for  plaintiff.  L.  Bigelow.  for 
defendant. 

BV  THE  COURT.  It  has  been  contend- 
ed in  Miiscase,  that  the  possession  of  the 
vendor  of  personal  chattels,  after  the  sale, 
is  conclusive  evidence  in  favour  of  credit- 
ors, that  the  sale  was  fraudulent;  or 
ratlier  that  it  is  itself  a  fraud,  liut  we 
'ire  nil  of  opinion  tliat,  ultlioiigh  it  is  gen- 
erally evidence  of  the  strongest  kind,  it  Is 
not  conclusive.  The  vendee  may,  not- 
withstanding, upon  proof  that  the  sale 
was  bona  tide  and  for  a  valuable  consid- 
eration; and  that  tlie  possession  of  the 
vendor,  after  such  sale,  was  in  pursuance 
of  some  agreement  not  inconsistent  with 
honesty  in  the  transaction;  hold  under 
his  purchase  against  creditors.  .\nd  so  it 
has  been  ofleu  decided  in  this  court,  as 
well  as  in  Kngland.  Judgment  on  the 
verdict. 


liltOWX    r    XOKTIICUTT. 


O:! 


BROWN  et  a1.  v.  NORTIICTTT. 

GOODMAN   et   al.   v.    NOKTIICI  Tr. 

(13  I'lic.  Hep.  485,  14  Or.  5-J'J.) 

Supreme   Court  of   Oregon.     Marcb,   1887. 

N.  n.  KniKht  nn<l  J.  A.  Stratton.  for 
Bppellant.  Win.  M.  Kninsej,  for  rc-M|>oii(J- 
ent.s. 

TIIAYKU,  J.  The  ni.iin  faetH  of  tlilH 
cnHi-  iirc  UH  followrt:  In  .luiiuary.  IsMt, 
certaii)  piirticH,  iiicliKlint;  the  rcsponilentH 
nnd  iippcllant,  litid  wheat  in  ilil'ierent 
HinoiintH  (in  Htorauc  in  the  warehouHo 
kept  li.v  onr  S.  Ilarkleroail.  at  (JervuiH,  in 
Marlon  county.  The  wheat  had  been  re- 
ceived liy  llarklerond  an  wari'houHenian, 
and  WHH  In  nin.sH.  On  the  twenty-Hccond 
<if  January,  isso,  the  appellant  liaviiiK 
made  arranyfcnicnts  with  .Mien  &  I,<'wiH, 
of  Portland,  to  Kell  to  tlieni  the  wheat  he 
had  on  depoHJt  inHaul  warehouse,  ^ave  an 
order  to  ilarkleroad  t(>  Hhjp  it  to  hv.'k) 
nllen  &  I.,ewis.  and  at  the  Hanie  time  eon- 
traeted  with  Ilarkleroad  to  procure  for 
him  the  neceHwary  sacks  in  which  to  lilnce 
it  for  Hhipnienl.  Ilarkleroad  enj;aKe<l 
transportation  of  the  railroad  company 
for  the  wheat.  'I'here  was  a  side  track  to 
his  warehouse,  and  the  company  left  some 
curs  upon  it  to  receive  the  wlie;it.  Ilar- 
kleroad enK'JKed  in  sackiiiff  and  putting 
the  wheat  ulioard  the.se  cars.  After  he 
hud  sacked  up  some  l,:5:i.'i  liushels,  the 
greater  jiart  of  which  he  hail  put  ahoard 
the  said  cars,  he  stopped  sackin;;.  an<l 
sent  for  apiiellant.  who  lived  a  few  miles 
out  in  the  country  from  (iervais.  .\ppel- 
lanteamo  to  (jervais  on  the  eveiiin^j  of 
the  thirtieth  of  saiil  month  of  .lanu.'iry, 
and  was  then  informed  that  there  was 
not  suliicient  kvlieat  on  stora;;'e  in  said 
warehouse  to  pay  all  the  depositors  the 
amounts  they  had  respectively  stored 
with  Ilarkleroad.  A  conference  was  had 
between  Ilarkleroad  ami  the  respomlents 
and  appellant,  which  resulted  in  llarkle- 
road's  maUiuf;  a  bill  of  sale  to  theuj  of  cer- 
tain effects,  inchidind  tlie  wheat,  and  on 
tlie  following  day  they  (respondents  and 
appellant)  entered  into  a  written  agree- 
ment between  themselves,  of  which  the 
following  is  a  copy:  "Articles  of  agree- 
ment made  and  entered  into  by  and  be- 
tween N.  Goodman,  S.  T.  iNorthcult,  and 
S.  I'.rown,  of  .Marion  county,  state  of  Ore- 
gon, on  this  thirtv-tirst  day  of  .laniiarv, 
1H80,  as  follows,  towit:  Whereas,  S. 
Harkleroad  did,  on  the  thirtieth  day  of 
January,  l^SO,  make  i\  bill  of  sale  and  de- 
liver to  the  above-named  parties  to  this 
agreement  all  his  personal  property,  con- 
sisting it)  part  of  wheat  in  the  warehouse 
at  (Jervais,  and  all  other  articles  nieii- 
tloneil  in  said  bill  of  sale,  for  the  puriiose 
of  said  |)arties  converting  the  same  into 
money,  and  paying  themselves  pro  rjita 
for  the  claitns  the  saiil  parties  liold 
ngaiiiHt  said  Ilarkleroad  on  account  of 
having  wheat  stored  in  his  (  llarkle- 
road's)  warehouse  in  Gervais.  Each  one 
of  said  partles'claliu  is  as  follows,  to-wlt: 
J.Stevens,  per  S.  Urown,  7i)J  :!l-t;i)  hush- 
els;  S.  T.Northcutt,  1,7L':!  2:!-(ilt  bushels;  N. 
Goodman,  7SS  bushels:  W.  McKee,  per  S. 
Brown,  10  4'J-(iO  bushels;  and  furlheragree 


that,  as  soon  as  flu-  wheat  above  referred 
to  is  converted  into  money  or  divided, 
then  the  fuml  arising  from  said  wheat,  as 
well  as  that  of  any  other  properly  ho  M(dd 
to  us,  shall  be  divided  pro  rata.as  each 
claim  liears  to  the  whide  amount  claimed; 
and  we  further  auree  to  convert  all  said 
property,  real  anil  personal,  into  money, 
then  a  full  and  e(|ual  diviHion  pro  rata  to 
bu  made,  and  all  lnisinehH  to  be  settled  up 
as  soon  as  the  nature  of  the  business  will 
admit  of,  with  as  little  loss  to  us  as  jiop- 
sible;  ami  it  is  further  understood  that 
the  shriveled  or  spring  wheat  In  said 
warehouse,  turned  over  to  us  by  said 
ilarkleroad,  iloes  not  belong  to  the  par- 
ties to  this  agreement.— only  such  as  is 
left,  if  any,  after  the  (larties  who  own  the 
same  have  taken  out  their  claims  on  said 
wheat.  Witness,  etc.  N.  Gooilman.  S. 
T.  .Northcutt.  S.  lirown."  The  respond- 
ents and  appellant  were  the  piincipnl 
owners  of  the  wheat  storeil.  There  were, 
however,  three  [inrties  besides  those 
named  in  said  written  agreenient  who 
also  had  wheat  stored  with  Ilarkleroad, 
viz.:  John  Wolford  &  Co.,  117. liO  bushels; 
.lames  Broyles,  "JS  bushels;  and  Charles 
Harkhnrst,  l(i(J..10  buslielH.— subject  to  the 
general  deficiency.  The  following  Is  a 
copy  of  the  bill  of  sale  referred  to  in  said 
agreement  above  set  out,  viz.:  "Know 
all  men  by  these  presents,  that  I,  Samuel 
Ilarkleroad,  of  Gervais.  .Marion  county, 
state  of  (Oregon,  have  this  day  solrl  to  N. 
Goodman,  .S.  T.  Northcutt,  and  Samuel 
Urown,  and  delivered  to  tliem.  all  my 
right,  tide,  and  interest  in  and  to  the  fol- 
lowing describeil  property,  to-wit,  for  the 
consideration  hereitiafter  named:  All 
the  wheat  in  the  warehouse  which  the 
said  Ilarkleroad  has  been  controllltig  dur- 
ing the  year  1S71I,  and  up  to  this  date, 
known  as  the  II  Hewitts  Co.  warehouse, 
in  (jervais, and  also  all  sacks  in  said  ware- 
house, or  due  him  from  different  parties; 
also  all  book  accounts,  ami  notes  dnesnld 
Ilarkleroail  for  storage,  etc.;  1  pair 
platform  scales;  1  beam  scale;  1  pair 
trucks;  I  scoop-shovel,  and  some  belting; 
1  tiay  horse  named  John;  1  sorrel  mare 
named  Nell;  1  Ktna  mower;  some  buck- 
wheat screenings,  in  said  wareliouse;  1 
set  double  harness;  1  sulky-plow;  I  Stand- 
ard organ,  -for  the  consideration  of  the 
sum  of  $:!,.'illO.  the  receipt  of  which  Is  hen>- 
by  acknowledged,  hone  in  (iervn's,  Ore- 
giin.  this  thirtieth  dav  of  .lannarv,  Is.si). 
S.  Ilarkleroad.  [L.  S.]"  After  said  bill 
of  sale  was  executed,  and  the  understand- 
ing had  in  reference  to  the  closing  out  of 
the  affair,  the  appellant  became  sollcllons 
about  his  arrangement  with  Allen  & 
Lewis  to  sell  them  his  wheat,  which  re- 
sulted in  an  agreement  bet  ween  him  and 
the  respondents  that  he  shoubl  have  n 
snlllcient  part  of  it,  at  one  dollar  a  bushel, 
to  nil  his  contract  with  .\llen  &  Lewis. 
The  tiusluess  and  assets  of  said  Ilarkle- 
road were,  on  the  said  thirty-tlrst  day  of 
•lanuary,  delivered  over  to  r(>spomlent8 
and  appellant.  The  latter  says  in  his  tes- 
timony that  "  the  next  day  — that  Is.  Sat- 
urday, the  :tlst— the  key  of  the  warehouse 
was  given  to  me.  1  went  over  to  the 
warehouse  for  a  few  minutes,  and  came 
1  buck  to  .Mr.  Goodman's.  "     Then    he  went 


94 


BROWN  V.  NOKTHCUTT. 


and  received  the  property;  went  by  the 
warehouse;  toUl  the  men  tliat  hud  been 
working  there  for  Ilarkleroad  that  he 
did  not  think  lie  could  do  any  work  in  tlie 
wareliouse  tliat  day;  went  up  to  Ilarkle- 
roart'  ,  and  was  busy  until  noon  reeeivinfr 
tlie  property ;  thinks  that  was  all  that 
was  done  that  day  between  Brosvn,  Good- 
man, and  liimself;  thinks  the  agreement 
was  drawn  up  and  si;ined  tliat  day,  and 
the  next  morning,  Sunday, got  eoiiio  hands 
and  went  to  work;  the  first  work  was  to 
sew  some  sacks  that  were  filled  when  he 
went  in,  and  load  a  oar;  did  not  (ill  any 
wheat  to  load  the  car  out  of  the  bins; 
there  was  a  car-load  already  filled  ;  that 
appellant  received  of  said  wheat,  includ- 
ing that  which  was  at  the  time  aboard 
the  cars,  and  that  had  been  sacked  and 
left  in  the  warelioUKe,  l,(iS7  bushels,  which 
he  delivered  to  Allen  &  Lewis  upon  his 
contract  with  them,  and  received  the 
price  thereof.  There  was  a  deficiency  of 
wheat  held  by  Harkleroad,  at  thetinie  ap- 
pellant gave  the  order  to  ship  his  wheat 
to  Allen  &  Lewis,  and  at  the  time  Harkle- 
road began  loading  the  cars,  amounting 
to  about  one-third  the  quRutity  that  had 
been  stored  with  him  bj- ihe  several  par- 
ties before  mentioned.  The  suit  was 
brought  to  adjust  the  matter,  and  to 
compel  the  appellant  to  account  for  the 
1,087  bushels  at  one  dollar  a  bushel,  the 
price  he  had  agreed  to  pay  therefor  if  the 
respondents  would  permit  him  to  ship  it 
upon  his  said  contract;  and  I  am  not 
able  to  discover  any  sufficient  reason 
wlij- he  should  not  be  required  to.do  so. 
It  is  true  that  the  bill  of  sale  and  the 
W'ritten  contract  between  the  parties  only 
specify  the  wheat  in  the  warehouse;  but 
it  is  evident,  I  think,  that  the  parties  in- 
tended them  to  include  all  the  wheat 
Harkleroad  had  on  hand,  or  that  was  in 
the  cars,  or  that  had  been  sacked.  The 
written  agreement  shows  that,  and  the 
testimony  establishes  it  beyond  any  ques- 
tion. It  is  claimed  u[)on  the  part  of  the 
apiiellant  that  all  the  wheat  that  had 
been  placed  in  the  cars  prior  to  the  time 
of  the  agreement  between  the  parties,  and 
all  that  had  been  sacked  and  left  in  the 
warehouse,  belonged  of  right  to  appel- 
lant; that  as  soon  as  it  was  segregated 
from  the  mass  of  wheat  it  became  his  in 
severalty;  and  that  he  ilid  not  know  at 
the  time  he  signed  the  contract  that  the 
1,333  bushels  had  been  sacked,  and  the 
three  cars  loaded,  and  that  he  should, 
therefore,  be  entitled  to  claim  that  wheat 
notwithstanding  he  hail  agreed  to  receive 
it,  and  pay  to  respondents  a  dollar  a 
bushel  therefor.  K  it  were  material,  1  do 
not  think  appellant  could  establish  from 
the  testimony  ignorance  or  want  of 
knowledge  of  that  fact.  Ht)  had  given  the 
order  to  have  his  wheat  sliiiiped  :  was  at 
the  warehouse  on  the  morning  of  the  day 
the  contract  was  entered  into;  testified 
that  three  cars  were  then  loaded ;  went 
the  next  day,  and  began  the  completion 
of  the  shipment  of  the  wheat;  and  on  the 
second  day  of  February  thereafter,  ac 
cording  to  the  testimony  of  Mr.  \V.  T. 
Welch,  book-keeper  of  the  assignees,  re- 
spondents and  appellant,  the  amount  of 
the    wheat    received    by    appellant,    and 


shipped  to  Allen  &  Lewis,  was  charged 
up  against  appellant  upon  the  books  of 
the  said  assignees,  under  the  direction  of 
the  last-named  parties,  and  apparently 
with  the  full  approval  of  all  of  them.  He 
certainly  had  the  fullest  opportunity  to 
ascertain  before  signing  the  said  contract 
what  Had  been  done  by  Harkleroad  in 
coiiipliauce  with  his  order. 

Hut  what  does  it  signify  whether  he 
knew  it  or  not?  There  was  n  shortage  of 
wheat  in  the  warehouse  liefore  any  was 
taken  out  to  put  aboard  of  said  cars. 
There  was  only  about  two-thirds  enough 
to  pay  the  depositors,  including  the  appel- 
lant, the  amounts  tlie.v  had  respectively 
stored  there;  and,  the  wheat  not  having 
been  kept  separate,  the  deficiency  or  loss, 
from  whatever  circumstance  it  may  have 
occurred,  if  not  occasioned  by  the  fault  of 
any  of  them,  must  fall  in>on  all  in  the 
proportion  which  the  amount  of  wheat 
each  had  deposited  bore  to  the  whole 
amount  deposited.  This  rule  is  based 
upon  a  maxim  that  all  courts  are  bound 
to  observe,— the  maxim  that  equality  is 
equity;  aud  it  certainly  could  have  no 
better  foundation.  The  authorities  pro- 
duced at  the  hearing  by  the  respondents' 
counsel  show  that  it  has  been  recognized 
and  approved  by  courts  of  the  highest  au- 
thority. See  Ci'shing  v.  Hreed,  14  Allen, 
3S0;  Sexton  v.  Graham,  .53  Iowa,  192,  193,4 
N.W.  Rep.  1090;  Dows  v.  Erkstrone,3  Fed. 
Rep.  19.  20;  Dole  v.  Olmstead,  3<)  III.  l.'iO. 

In  Cushing  V.  Breed, supra,  theeourt  held 
that  where  sevei'al  parties  had  stored  vari- 
ous parcels  of  grain  in  an  elevator,  and  it 
was  put  into  <me  mass  according  to  usage 
to  which  they  must  have  been  deemed  to 
have  assented,  they  were  tenants  in  com- 
mon of  the  grain,  and  that  each  was  enti- 
tled to  such  a  proportion  as  the  quantity 
placed  there  liy  him  bore  to  the  whole 
mass;  and  in  Dole  v.  Olmstead,  supra, 
the  court  held  the  same  doctrine;  and 
held,  further,  that,  the  grain  being  thus 
owned  in  common,  the  several  owners 
were  compelled  to  sustain  any  loss  pro 
rata  wliidi  might  occur  by  diminution, 
decay,  or  otherwise;  and  that,  where  the 
holder  of  a  receipt  had  received  the  full 
quantity,  or  a  larger  proportion  than  his 
r.itable  sliare,  in  view  of  the  deficiency,  he 
would  be  bound  to  account  for  such  ex- 
cess received  liy  him  according  to  his  i)ru- 
portion  of  the  loss.  This  is  undoubtedly 
the  correct  rule,  as  it  is  founded  upon  com- 
mon justice. 

The  result  of  the  rule  is  simply  this:  A. 
puts  wheat  in  a  warehouse  for  storage. 
B.,  t'.,  and  others  severalli'  have  wheat 
there  for  the  same  purpose.  It  is  all  min- 
gled together  with  the  presumed  consent 
of  all  parties.  They  each  necessarily  own 
the  several  amounts  of  wheat  they  have 
there,  but  neither  can  identify  his  own. 
But  it  is  in  common,  and  if  a  loss  occurs 
by  casualty,  or  the  warehouseman  wrong- 
fully abstracts  a  part  of  the  general  lot,  it 
must  necessarily  be  borne  b.v  tliedepositors 
pro  rata.  But,  to  render  A.  liable  to  eon- 
tribute  to  the  loss,  it  must  occur  after  he 
stored  his  wheat.  He  would  not  be  af- 
fected by  any  deficiency  which  occurred 
prior  to  his  deiiosit  of  his  vvlieat.  Former 
deficiencies    would    have   to   be   borne   by 


BROWN  V.  NORTHCUTT. 


95 


15.,  C,  and  otherH  who  had  wheat  there 
when  It  (icciirred.  A.'h  iiiiiount  of  wheat 
would  be  tlio  proportion  it  Ijoro  to  the 
whole  amount  actually  in  Btore  when  l)o 
placed  his  there,  not  to  the  uuKJutit  it 
woulil  lie  with  what  1$.,  C,  anil  othcrH 
had  really  put  there.  Now,  when  the  up- 
pellatit  Have  the  order  to  Uarkleroad 
to  Hhip  his  wheat  to  Allen  «X:  Lewiw.  he 
did  not  liaveonHtoraKc  with  him  1,7-i  ii-fiO 
buHlielM.  AsHUMiin«  that  the  delieijiicy 
amounted  to  one-tliird  of  the  whole  niasH, 
he  only  had  1,14S  and  a  fraction  bUMheU 
there,  and  had  no  rl^ht  whatever  to  take 
more  than  that  from  the  warehouse. 
Any  attempt  upon  IiIh  part  to  take  be- 
yond that  <|uantUy  was  an  attempt  to 
take  wheat  which  did  not  belonji  to  liiin, 
or  to  Uarkleroad,  but  which  did  belonj? 
to  the  rcHpondentM  and  the  other  deposi- 
torw.  The  diminution  of  the  general  l<it  of 
wheat  In  the  warehouse,  one-third,  has 
diminlHlied  his  (|uantity  one-third  also, 
and  left  liiiu  only  the  owner  of  the  nu:n- 
ber  of  liushels  before  mentiimed.  His  at- 
tempted Hhl|iment  of  his  wheat,  therefore, 
nave  him  no  better  Ktandin};;  or  iurther 
rijjhtM  in  the  premises  than  the  other  de- 
positors enjoyed,  althou}^!)  it  were  sacked 
anil  put  ab.)ard  of  the  cars,  except  this: 
He  might,  when  he  came  to  (iervais  on 
the  said  thirtieth  dav  of  .lanuary,  have 
elected  to  take  the  l",14S  bushels ,  but  it 
was  an  advantage  to  him  to  acccept  the 
assignment,  as  he  thereby  also  aciiuiroil 
an  interest  in  tlic  scales,  horses,  and 
other  proijerty  included  iti  the  bill  of  sale 
from  Harkleroad. 

Some  suggestion  was  made  upon  the 
argument  that  the  law  favored  the  vigi- 
lant in  obtaining  their  rights.  To  a  cer- 
tain extent  tliat  is  correct.  The  law- 
looks  with  disfavor  ujion  a  |)arty  who 
sleeps  upon  his  rights,  but  it  certainly 
does  not  commend  the  vigilance  of  a  party 
in  his  endeavors  to  deprive  others  of  their 
rights.  The  vigilance  that  is  exercised  to 
get  others'  property  from  them  may  be 
tortious,  and  even  criminal.  1  cannot  see 
but  that  the  respondents  and  appellant 
acted  fairly  and  manly  in  their  attempted 
adjustment  of  the  matter.  The  respondents 
may  have  been  odicious  in  having  Harkle- 
road quit  the  shipment  of  the  wheat  for 
ai)i)ellant;  but  they  had  a  right  to  be 
Their  wheat  was  there  also.  A  deficiency 
had  occurred  in  the  amount  of  wheat  on 
hand.  There  was  not  enough  left  to  pay 
all  the  depositors  in  full,  and,  if  the  apjiel- 
laiit  were  permitted  to  lake  out  the  full 
amount  he  had  placed  in  the  warehouse, 
their  loss  would  be  greater.  \\  was  right, 
under  the  circumstances,  that  Harkleroad 
should  desist  from  shipping  the  wheat 
until  the  affair  could  be  arranged,  and  it 
could  not  have  been  arranged  in  any  bet- 
ter or  more  honorable  way  than  it  was. 
The  res[)ondents  and  appellant  being  the 
principal  depositors  of  wheat,  all  that 
remained  on  liand,  and  all  the  other  prop- 
erty Harkleroad  had,  was  assigned  to 
them,  and  they  enteied  into  tlie  written 
agreement  to  administer  upt)n  it.  Kven 
if  the  uppelliint  had  obtained  a  legal  ad- 
vantage In  consequence  of  a  part  of  the 
wheat  having  been  sacked  and  delivered 
aboard  the  cars.  It  would  have   been    the 


merest  technical  ailvantnge  Imnglnnlde. 
and  would  huvx  operated  iuequilably  and 
unjustly.  I  think  a  c<nirt  should,  in  any 
case,  require  the  clearest  proof  of  fraud 
or  Imposition  before  relieving  a  party 
from  his  contract  In  order  that  he  rnluht 
profit  by  an  unjust  advantage  the  law 
may  afford.  I!ut,  as  before  stated,  the 
appellant  held  no  advantage  on  account 
of  the  segregation  of  the  wheat  sackei 
from  the  mass.  He  had  no  right  to  ac- 
cejit  or  remove  a  kernel  of  It  beyond  his  pro 
rata  portion,  and  that  was  awarded  to 
him  In  the  adjustment  by  the  tr-rms  of  the 
written  agreement.  The  suit  was  brought 
to  enforce  that  agreement,  and  for  a  final 
accounting  between  the  iiarties  to  it. 
The  able  anrl  experienced  circuit  judge  has 
hi'ard  the  case,  and  1  think  has  decided  It 
correctly  in  the  main.  There  Is  a  discrep- 
ancy in  the  account  against  the  appel- 
lant arising  out  of  charging  him  the  full 
amount  of  storage  on  the  wheat  in  con- 
troversy. This  sum  should  have  been  de- 
ducted from  the  amount  of  appellant's 
wheat  on  storage  on  which  his  dividend  Is 
declared.  The  decree  will  therefore  be 
modified  accordingly,  and  in  other  re- 
spects afflrnird ;  costs  of  appeal  tol)epaid 
out  of  the  funds  in  the  hands  of  assignees. 

LORD,  C.  .r.,  (concurring.)  This  is  a 
case  of  bailment.  Upon  that  hypothesis, 
where  wheat  of  different  owners  has  been 
deposited  in  a  warehouse,  and  so  inter- 
mingled that  idetititicatlon  of  sei'.arate 
ownership  is  lost,  the  depositors  of  such 
wheat  in  mass  are  tenants  in  common. 
But  the  title  of  the  depositors  or  the  own- 
ership of  such  wheat  has  not  been  de- 
stroyed by  the  intermixture;  the  deposi- 
tors havesimply  transferred  the  possession 
to  the  warehouseman,  and  he  liolds  it  as 
their  agent,  and  subject  to  their  orders, 
tor  a  delivery  of  the  possession.  In  such 
case,  the  wheat  is  a  common  fund  out  ol 
which  each  de|)ositop  Is  to  be  restored  to 
his  possession,  or,  so  to  Hi)eak.  for  the  re- 
payment of  each  owner's  wheat.  Any 
owner  or  depositor,  upon  the  payment  <jf 
charges  for  storage,  has  a  light  to  de- 
mand the  redelivery  of  lils  wheat,  and  to 
be  restoreil  to  its  possession.  The  segre- 
gation of  the  wheat  from  the  bulk,  and 
thedelivery  of  it  to  theowner  forthei)uan- 
tity  of  wheat  to  which  he  is  entitled,  only 
puts  him  in  possession  of  his  own  prop- 
erty. The  effect  of  the  segregaliim  is  to 
identify  the  wlieat  for  the  purpose  of  de- 
livering possession  of  it  to  the  owner. 
But  the  segregation  of  the  wheat,  l)y 
which  its  identity  is  restored  to  make  it 
available  for  a  delivery  of  pos.session  to 
the  owner,  always  proceeds  upon  the 
principle  that  the  warehouseman  Is  in 
possession  of  the  wheat,  in  mass,  of  such 
depositors,  and  from  >vhlch.  by  segrega- 
tion, he  identllies  the  wheat  of  an  Individ- 
ual owner,  and  restores  it  to  his  posst-s- 
sion.  His  act  Is  but  a  partitioidng  of  the 
individual  quantity  from  the  mass  with 
which  It  has  been  intermingled,  and  must, 
of  necessity,  operate  upon  the  mass  of 
which  such  Individual  <)uantity  consti- 
tutes a  part.  Hut,  being  a  (lartofsucb 
mass,  whatever  affects  or  diminishes  that 
mass   win   affect   or  diminish  proportion- 


96 


BROWN  0.  NORTHCUTT. 


ally  all  the  parts  of  siich  mass,  and  conse- 
quently such  individual  part  or  deposi- 
tor'squantity  of  such  mass.  When,  there- 
fore, by  reason  of  accident  or  otlicr  caiine, 
there  lias  been  a  loss  or  diminution  of  the 
mass,  it  affects  ratal)ly  the  quantities  to 
which  s'lch  depositor  is  entitled  of  such 
mass,  reduces  the  gross  quantity  of  the 
wheat  in  the  possession  of  tlie  ware- 
houseman, and  proportionally  limits  his 
power  of  restoring  possession  to  them. 
His  possession  of  the  wheat  in  mass,  be- 
ing for  the  depositors,  is  affected  In  the 
same  degree  as  their  ownership  is  by  the 
loss  or  diminution.  His  possession  is 
still  of  a  mass,  but  of  a  diminished  mass, 
and  they  are  tenants  in  common  of  such 
diminished  mass.  His  power  to  restore 
possession  is  measured  by  the  quantity 
to  which  eacli  depositor  is  entitled  of  such 
diminished  mass;  and  tliis  is  the  ground 
of  division,  whether  the  warehouseman  is 
in  possession,  or  tlie  depositors  have 
taken  possession  of  such  mass.  'J"he 
warehouseman  cannot  rightfully  give, 
nor  can  any  depositor  rightful^-  take, 
possession  of  any  greater  quantity  than 
he  is  entitled  to,  based  upon  the  masa 
affected  by  the  loss  or  diminution.  If  the 
warehouseman   should  deliver  to  any  de- 


positor a  greater  quantity  than  he  would 
be  entitled  to,  from  such  residue, although 
the  proper  quantity  to  which  lie  would 
have  been  entitled,  if  there  had  been  no 
loss  or  diminution,  it  would  be  a  wrong- 
ful taking,  as  well  as  a  wrongful  posses- 
sion, as  against  the  other  depositors,  for 
the  surplus  over  the  quantity  to  which 
he  would  have  a  right  of  such  residue. 
Analogous  to  the  principle  upon  which 
equity  acts,  where  several  parties  are  en- 
titled to  participate  in  a  common  fund, 
and  awards  a  distribution  upon  the 
maxim  that  "equality  is  equity,'' it  will 
treat  such  residue  as  a  common  fund,  to 
be  distributed  in  ratable  proportions 
among  the  depositors  entitled  to  partici- 
pate in  it.  Upon  this  principle,  as  dis- 
closed by  the  record,  the  decree  can  be 
sustained.  So  far  as  appears,  all  who 
have  a  right  to  participate  in  the  distri- 
bution have  been  made  i)arties.  In  such 
ease,  the  remedy  in  equity  is  uiore  com- 
plete, and  certainly  would  avoid  a  mul- 
tiplicity of  suits.  It  acts  upon  the  col- 
lective rights  and  liabilities  of  the  parties, 
which  is  said  to  be  a  distinguishing  fea- 
ture of  the  equity  system,  and  awards  its 
distribution  upon  the  equitable  princi- 
ples of  the  maxim  cited. 


BROWNE  V.  UAUE. 


99 


DIIOWMC  .-I  al.  V.  HAKE  et  al. 

(3  Hurl.  &  N.  484.) 

Exchc(|iier  of   ricas,   Trinity   Term.    June   i-, 
1808. 

(4  Hurl.  &  N.  822.) 

Kxchequer   Cbanibor,   Trinity   Vacation.     June 
23,  18J!». 

Decliiriition.  Tliut  defendantH  agreed 
with  the  pliiiiitiffM  lo  buy  of  then)  a  cer- 
tniii  (|iiaiitit.v,  to  wit, ten  toriH,  of  the  IjOHt 
ri'liDeil  inpu  oil,  to  be  hIi)|)|)1'(I  free  on 
hoard  nt  liotterdjiin  in  September,  Is.j", 
ut  £4!S  l.')H.  per  ton;  to  be  paiil  f(jr,  on  de- 
livery to  the  defei.daiitH  (jf  the  bills  of  lad- 
ing, by  bill  of  exi-lianire  to  lie  accepted  by 
the  defen<Iaiits  payable  three  iiionth.s  after 
date,  and  to  be  d<iled  on  the  ilay  of  Hhip- 
nient  of  the  Hald  oil.  .\nd  althoiiiih  with- 
in the  month  of  Septeml)er,  1n,")7,  the|ilain- 
tlffs  -ihippcMl  at  Kotterdain  a  certain  por- 
tion. In  wit.  live  toMH,  of  the  best  rehned 
rape  oil  free  on  board  u  certain  Hhip  called 
the  S(jiihie,  and  tli.?  rcHidue  thereof  free  on 
board  a  certain  other  ship,  and  deli vered 
to  the  defendants  the  res|)ectire  bills  of 
ladint.'  o(  the  said  oil  dnly  indorsed  to  the 
defendants;  and  altlion^h  the  plaintiffs 
performed  all  conditions  precedent,  and 
all  things  had  been  done  an<l  happened, 
and  all  time  had  elapsed,  to  entitle  the 
plaintiffs  to  have  the  said  oil  paid  for  by 
bill  of  exchange  as  aforesaid,  and  to  main- 
tain this  action;  yet  the  defendants  n)ade 
default  in  iiayiiiK  for  the  said  portion  of 
the  said  oil  so  shipi)ed  on  Ixjard  the  sni(; 
ship  called  the  .Sophie,  and  in  ncceptinK  a 
hill  of  e.\chnnj;e  for  the  same.  There  was 
also  a  count  for  goods  barpained  and 
sold,  and  >;oods  sold  and  delivered. 

ricas  to  liist  count.  First,  that  defend- 
ants did  not  agree  with  plaintilfs  as  al- 
leged. Secondly,  that  the  plaintiffs  did 
not  ship  the  sale!  portion  of  the  oil  on 
hoard  the  sliip  calleil  the  Sophie.  Thirdly, 
that  the  plaintiffs  did  not  deliver  to  the 
defendants  the  bill  of  lading  of  the  said 
portion  of  oil  shipped  on  board  tlieSophie. 
duly  indorsed  to  the  defendants.  Fourth- 
ly, that  the  plaintiffs  were  not  ready  and 
willing  to  deliver  the  said  portion  of  oil 
Bhipped  on  board  the  .Sophie,  or  the  bill  of 
Indlngot  the  same  oil.  to  thedefcndnnts,  in 
accordance  witli  the  terms  of  the  said  agree- 
ment. IMflhly.  that  the  said  agreement 
was  for  the  sale  of  ten  tons  of  oil  gener- 
ally, and  not  of  any  specific  or  nsrertnined 
oil.  That  the  said  ship  called  the  Sophie 
was  a  general  ship,  and  was  not  a  ship 
chartered  by  the  defendants  or  in  any 
way  appointed  or  denoted  by  them.  That 
the  plaintiffs,  when  they  shipped  the  said 
DortioTi  of  oil  on  boardthe  Sophie,  took 
from  the  master  of  that  vessel  a  bill  of 
lading  of  the  said  oil,  making  it  deliver- 
able to  the  order  of  the  pl.iintiffs  or  their 
assigns,  and  not  otherwise.  That  liefore 
any  delivery  of  the  said  oil  to  the  defend- 
ants, and  before  any  indorsement  or  de- 
livery of  the  s.-iid  liill  of  l/iding,  or  of  any 
bill  of  Ijiding  (if  the  said  oil.  to  the  defend- 
ants, the  said  shiii  called  the  Sophie,  with 
the  said  oil  on  board,  was  totally  lost, 
and  the  said  oil  then  bei'ame  and  was 
Without  any  neglect  or   default    of  the  de- 


fendants wholly  lost  and  ilestroved. 
That  the  plaintiffs  never,  in  tact,  <lellvircrl 
or  oft.-red  to  driiver,  nor  have  tliev  bei-n 
ready  and  willing  lo  deliver,  the  HuTd  oil  li> 
the  defendants;  nor  have  the  pluintiffH 
ever  delivered  or  offered  fd  deliver,  or  lieen 
ready  and  willing  to  delivi-r.  the  said  liill 
of  lading  or  any  bill  of  lading  of  the  naid 
oil  to  the  defendants  until  after  the  said 
oil  had  been  ho  wholly  lost  ami  destroyed 
as  aforesaid.  That  when  the  plaintiffs 
delivered  to  the  defendants  the  said  bill 
of  lading  of  the  said  oil  as  In  the  tirst 
count  mentioned,  the  plaintiffs  kin-w,  and 

.  the  defendants  did  not  know,  that  the 
said  ship  and  the  said  oil  had   been  so  lost 

[and    destroyed    as    nforesaiil.      That     the 

;  defendants  have  not  derived  any  benelit 
or  advantage  whatever  or  any  possildl- 
ity  of  benelit  or  nilvnntage  under  the 
said    agreement,  or  received   any  consiiler- 

I  ation  or  value  whatever  for  ttie  liability 
sought  to  be  imposed  on  them  in  this  ai-- 
tion  by  the  plaintiffs.  To  second  count, 
never  indelited.     Issues  thereon. 

At  the  trial  tiefore  .Martin,  B.,  at  tliH 
Lonilon  sittings  after  Hilary  term,  the 
following  facts  appeared.  The  plaintiffs 
were  merchants  at  Hot teiilam,  and  the 
defendants  merchants  at  Ilristol.     On    the 

j'Jth  of.\pril,  |s.">7.  the  defendants  wrote 
the  following   letter    to    one    (ioolden,   a 

'  broker  at   I'ristol,  who   had    before   nego- 

I  tinted  i)urchases  between  the  plaintiffH 
and  the  defendants:— "  Messrs.  Itrowni' & 
Co.  may  .send  us  20  tons  of  best  relined 
rape  oil  in  September  or  October  next,  at 
or  under  47s.  free  on  board."  (ioolden  ac- 
cordingly communicated  with  the  plain- 
tiffs, and  tlie  defendants  afterwards  wrote 
to  them  that  they  might  go  as  high  an 
4Ss.  (»n  the  Htli  the  defendants  wrote  to 
tlie  plaintiffs  .'ibout  the  pnichase  of  some 
black  lead,  and  stated  that  they  had 
rather  that  the  plaintiffs  wouhl  coniiiiuni- 
cate  with  them,  but  that  all  their  trans- 
actions in  oil  might  go  ou  through  Uool- 
den.  .\fter  some  further  correspondence 
between  tho  parties,  a  contract  was 
made,  through  Ooolden,  for  the  sale  by 
the  pl'iintiffs  to  the  defendants  of  twenty 
tons  of  the  best  relined  rape  oil,  ten  tons 
"tobeshipped  free  on  Itoard  at  Itotter- 
dnni,  September,  ls.'>7,  at  t4S  l,")s.  per  ton, 
to  be  paid  for,  on  delivi-ry  to  the  deleiiil- 
ants  of  the  bills  of  lading,  by  bill  of  ex- 
chniige  to  be  accepted,  liy  the  defendants, 
payable  three  months  after  date,  and  to 
be  dated  on  the  day  of  shipment  of  the 
oil :  "  the  ten  other  tons  were  to  be  Khlppeil 
in  OctoliiT  on  the  same  terms.  Onthe:!(l 
September  the  defcnilants  requested  tlie 
plaintiffs  to  sen<l  part  of  the  oil  by  the 
tirst  vessel  from  Itottenlam,  which  was  the 
Sophie.  t)ntlie7th  September  the  plain- 
tiffs wrote  to  tiocddeii.  who  informeil  the 
defendants  on  the '.1th,  that  live  timsoftho 
oil  woulil  beshi(ipedon  the fidlowing  day. 
On  till-  sth  September,  the  plaintiffs 
shlppeil  on  board  the  .Sophie,  which  was  u 
general  vessel  trailing  from  Kotterdain  to 
Bristol,  live  tons  of  the  oil,  and  the  mas- 
ter signed  the  following  bill  of  Iniling: 
"Shipped  In  good  ordi  r  and  well  condi- 
tioned by  'J'lios.  Itrowne  and  .Son  in  and 
upon  the  good  steamship  called  'The 
Sophie,"  wherctif   Is  master,  &c.,  and    now 


100 


BROWNE  V.  IIAUE. 


Jyinp:  in  this  port  nnd  bound  [or  liristol, 
tliirtoon  casUs  of  oil,  niarUed  and  num- 
bered as  iu  the  margin,  and  tube  delivered 
in  the  like  Rood  order  and  well  condi- 
tioned at  the  nforewaid  port  of  liristol 
(the  act  of  God,  the  Queen's  enemies,  lire, 
machinery,  Ijoilerw,  Kteani,  and  all  an(J 
every  other  danfiei's  and  accidents  of  the 
seas,  i-ivers,  and  Ktcam  navigation  of 
what  nature  or  kind  soever  excepted,) 
unto  shippers'  order  or  their  assignw,  he 
or  they  payinj;  freight  for  the  said  goods 
25fl.  Ht.  per' ton,  Ur.  VV.,  with  lOs.  prim;i<:e 
and  averafie  accustomed  and  dislmrse- 
nients  as  in  the  margin.  In  witness,"  &c. 
On  the  same  day  the  plaintiffs  endorsed 
the  hill  of  lading  as  follows:— "  Deliver  the 
contents  to  the  order  of  Messrs. .Ino.  Hare 
&  Co.  Thos.  Browne  &  Son."  The  plain- 
tiffs also  made  out  an  invoice  as  follows: 
— "Invoice  of  oil  shipped  on  board  'The 
Sophie,' J.  Van  Isnapon.for  Bristol,  by  or- 
der of  Mr.  S.  (Joolden  for  account  of 
Messis.  .Tno.  Hare  &  Co.  there,  13  casks 
refd.  Kape  Oil,  weighing  nett  12'235  in  Eng- 
land, (((  XAS  ir>8.  per  ton.  (fo.  B.)  £'2ti()  os. 
Cd.  Rotterdam,  Sth  Septr.,  lS.i7.  Thos. 
i?rowno  &  Son."  (Then  followed  a  note 
of  weights.)  On  the  same  day  the  plain- 
tiffs enclo.sed  in  a  letter  to  (Joolden  the  bill 
of  lading,  invoice,  and  a  bill  of  exchange 
drawn  on  the  defendants  in  accordance 
with  the  contract.  On  the  night  of  the 
fltli  the  Sophie  was  run  down  in  the  Bris- 
tol Channel,  and  the  oil  totally  lost.  The 
plaintiffs'  letter  of  the  Sth  arrived  at  Bris- 
tol on  the  afternoon  of  the  10th,  in  due 
course  of  post,  but  after  business  hours. 
On  the  morning  of  the  11  tli,  (Joolden  left 
with  the  defendants  the  bill  of  lading,  in- 
voice,and  bill  of  exchange  for  tbeiraccept- 
nnce.  At  that  time  he  knew  of  theloss  of  the 
Sophie.  In  about  twfi  hours  the  defend- 
ants returiKMl  to  (ionlden  the  documents 
which  he  left  with  theiu,  on  the  ground 
that  under  thecircumtances,  they  werenot 
lialile  tr)  iiay  for  the  oil.  The  other  five 
tons  arrived  on  the  2Sth  of  September,  and 
were  accepted  and  paid  for  by  the  defend- 
ants. 

The  learned  judge  was  of  oi)iuion  that 
under  these  circumstances  the  plaintiffs 
were  entitled  to  recover;  and  the  jury 
found  a  verdict  for  them,  stating  Ihat  in 
their  opinion,  accordir.g  to  meirantile 
usage,  the  risk  of  the  loss  cf  the  oil  was 
on  the  defendants.  Leave  was  then  re- 
served to  the  defendants  to  move  to  enter 
the  verdict  for  them. 

Hugh  Hill,  in  last  Easter  term,  obtained 
a  rule  nisi  accordingly,  against  which 
Butt  and  Prideaux  showed  cause  in  the 
same  term,  (May  6,  8.)  Hugli  Hill  and 
Raymond,  iu  support  of  the  rule. 

The  learned  judges  having  differed  in 
opinion,  tlie  following  judgments  were  de- 
livered. 

BRAMWKLL,  B.  I  am  of  opinion  that 
this  rule  should  be  made  absolute.  1  will 
first  consider  the  actual  case  independent 
of  the  pleadings.  The  plaintiffs  agreed  to 
sell  to  the  defendants,  and  the  defendants 
agreed  to  buy  of  the  plaintiffs,  a  quantity 
of  oil,  the  particular  parcel  not  being  as- 
certained.     Iu    addition    to    selling,    tlie 


plaintiffs  were  to  ship  tbe  oil  free  on 
board  a  vessel  to  take  it  from  the  plain- 
tiffs to  the  delendants.  'I'he  defendants 
were  to  pay  on  delivery  of  the  bills  of  lad- 
ing, by  bills  to  be  dated  on  tha  day  of 
shipment  of  the  oil.  Oil  was  shipped 
liy  the  plaintiffs  to  the  extent  ol  aljout 
twentj'  tons.  Various  bills  of  lailing  in 
sets  were  signed:  they  were  taken  deliv- 
erable to  the  plaintiffs'  order.  One  of  a 
set,  for  about  five  tons,  whs  indorsed  by 
then)  specially  to  thedefendants  (i.  e.  such 
an  indorsement  was  written  on  it)  and 
(endei-eil  to  the  defendants,  but  before 
the  ten<ler  the  ship  and  oil  were  lost  and 
destroyed.  The  |)luintirfs,  however,  on 
the  7th  September,  wrote  to  (joolden  to 
inform  the  defendants,  which  he  did  before 
the  loss  of  the  Sophie,  that  she  would 
l)ring  tive  tons  of  relined  lape  oil  for  the 
defendants;  but  they  did  not  identify  or 
appropriate  any  [larticular  oil,  nor  even 
intimate  that  it  had  been  shipped, — i)rob- 
ably  it  had  not  been,  as  the  bill  of  ex- 
change is  dated  the  Sth.  This  contract  is 
essentially  a  contract  for  the  sujiply  of 
unascertained  chattels,  and  I  think  it  is 
clear  law  that,  under  such  a  contract,  the 
seller  can  have  no  right  of  action  till  the 
seller  has  done  an  act  which,  by  the  agree- 
ment between  him  and  the  buyer,  is  to 
vest  the  property  in  the  buyer:  as,  by  de- 
livery to  him,  (jr  to  a  carrier  for  him,  of 
goods  corresponding  with  the  writing, 
or  till  the  seller  has  appropriated  or  of- 
fered to  appropriate  and  supply  to  the 
buyer  certain  chattels  which  correspond 
with  the  contract.  See  Blackburn  on 
Contract  of  Sale,  pt.  2,  c.  1.  Have  either 
of  these  things  taken  place  here?  I  think 
not.  An  appro[)riation  in  the  seller's  own 
mind,  a  mere  intent  to  ai)pr<jpriate,— a 
mutter  which  the  seller  can  suppress  or 
undo  at  pleasure, — will  not  sufiice.  If  he 
offers  to  appropriate  particular  articles, 
and  the  buyer  without  cause  refuses  them, 
a  right  of  action  for  not  accepting  vests; 
but  unless  there  is  an  appropriation  of- 
fered, and  accepted  or  reaised,  there  is  no 
cause  of  action.  I  do  not  understand 
there  is  any  doubt  on  the  law:  then  it  re- 
mains to  examine  the  facts.  I  think  it 
immaterial,  but  the  Sophie  was  selected 
by  the  plaintiffs,  not  by  the  defendants. 
If  she  had  been  the  defendants'  ship,  and 
the  oil  had  l)een  put  on  board  it,  as  it 
mijiht  have  been  delivererl  to  a  wagon, 
that  would  have  been  a  delivery  to  the  de- 
fendants, assuming  the  oil  corresponded 
with  the  contract.  So  the  Sophie  being 
as  it  were  a  carrier's  ship,  the  oil  might 
have  been  put  on  lioard,  as  a  parcel  to 
be  carried  by  land  may  be  given  to  a  com- 
mon carrier,  so  as  to  vest  the  property  in 
the  consignee  and  be  a  delivery  or  not, 
according  to  the  right  of  lien.  So  if, 
after  the  shipment,  bills  of  lading  had  been 
taken  in  the  defendant's  name,  or  if  taken 
in  the  plaintiffs'  name  they  had  been  in- 
dorsed and  delivered  to  the  defendants 
while  the  goods  were  in  existence,  1  think 
that  would  have  been  a  compliance  with 
the  contract;  because,  even  assuming  the 
property  is  to  be  in  the  buyer  from  the 
time  of  shipment, and  that  the  seller  is  the 
buyer's  agent  to  ship,  still  I  think  he  may 
BAercise  that   agency   iu    his  own   name. 


« 


BROWNE  V.  II.VUE.  101 

and  thnt  it  is  no  more  necesHary  lie  Hhoiilil  I  plea  in  an  answer.  On  tlio  latter  vl^  w, 
t.ikf  tlie  hill  of  liulluK  in  tlii-  buyer's  naiuo  tlie  ilellvery  of  tlie  liill  of  lailiii^  must  lie 
tlian  it  is  tliat  lie  siioultl  say  at  tlie  ino-  tak'^n  to  lie  a  delivery  while  tlir-  oil  wuh 
riiPiit  of  shipment,  "These  Hie  the  buy-r's  capatile  of  appropriation,  and  then  the 
UOdds,  I  ship  on  his  acc-oiint. "  liisiirha  four!  Ii  (>lea  meetH  the  ease,  .\iiyhow  the 
ease  his  tender  of  the  hill  of  l,idiii)r,  [irop-  tiftli  plea  is  proved,  lor  the  allegation  that 
cily  itiilorsed  to  the  buyer,  may  well  he  the  plaintiffs  knew  the  oil  was  lost,  and 
taken  to  show  he  wa.s  aetiiii;  as  the  buy-  the  deleiidaiits  ilid  not,  is  iniiniiteriai,— of 
er's  iiy;ent  in  the  shipment,  anil  conse-  roiirne  If  tha  t  plea  is  bad.  it  is  not  pruveO, 
(jiiently  tliat  he,  in  effect,  shiiiped  tlie  '  as  those  alleviations  Mre  not. 
jjToo'is  for  him.  liut  if  the  seller  had  the  This  opinion  is  warranted  liy  the  ou- 
ri^ht,  as  loni;  as  the  troods  were  in  exist-:  thorltles.  if  no  profierty  vested  In  thodc- 
enee,  to  say  that  he  had  done  nothing  to  fendants  while  the  iroods  were  In  esse.  It 
vest  the  proiierty  in  the  buyer,  that  he  remained  in  the  plaintiffs,  and  they  iiiuHt 
never  offered  to  apprcjprinte  them,  surely  bear  the  loss.  The  following  aiilhoritieH 
it  was  too  late  for  him  to  do  so  after  the  show  that  no  property  die!  vest:  Turner 
L'oods  were  lost.  Then  liad  he  done  any-  v.  'J'lie  Liverpool  l>oi-ks;>  Kliersliaw  v. 
thin;;  to  vest  tlie  iiroperty.  had  lie  ileliv-  .Mnuniae.-'  where  there  is  the  e.\presNion  in 
ered,  had  ho  offered  to  aiiprupriale  this  the  judgment,  "  Though  the  nooils  iiilnht 
oil  while  it  was  in  existence?  Ii  so, when?  ha ve  been  purchused  with  the  intention 
At  the  moment  of  shipment  ?  flea  riy  not.  |  they  should  be  delivered  to  ICIIersha  w. 
Mow  could  it  be?  The  ship  was  not  the  that  intention  was  never  exeruteil;" 
di  fendants" ;  the  oil  was  put  on  board  .Mitdiel  v.  ICde;-''  Van  Casteel  v.  Hooker.* 
with  no  notice  that  it  was  for  the  di-feiid-  No  doubt  in  some  of  those  cases  the  word 
ants;  otlier  oil  was  put  with  it;  and  it  "  intention  "  is  nseil,  but  It  iiieans  "  inten- 
WHS  in  tlie  jiower  of  the  plaintiffs  to  ap-  tion  indicated. "  In  the  jnd;iiiieiit  in  Tur- 
(iropriate  to  the  defendants  such  part,  or  ii'-r  v.  'i'he  Liverpool  Docks  it  is  saiil: 
no  part,  of  the  whole,  as  tliey  pleased.  "The  question  really  is  whether  any  anil 
The  cases  referred  to  helow  clearly  show  what  effect  is  to  lie  K'^'en  to  the  terms  of 
there  was  no  delivery.  Was  it,  then,  the  liill  of  lading;;  for  it  by  those  terms 
when  the  [daintiffs  took  the  liill  of  lad-  they  reserved  to  themselves  the  dominion 
iiii;?  Clearly  not.  When  they  indorsed  over  the  cot  ton,  it  would  not  pasH  to  the 
it?  I  say,  as  dearly  not,  for  there  was  assi;ine''s.  And  in  this  case  It  «as  well 
iiotliiiiK  to  prevent  their  erasing  that  in-  ar;iiied  by  Mr."  Hay  miind,  that  had  the 
dorsement,  or  ilesfroyine;  or  siippressiiin  |  osition  of  the  parlies  been  reversed  the 
that  bill  of  lading,  and  inilorsin;;  another,  defendants  could  not  successfully  have 
Then  was  the  property  so  vested  or  ap-  said,  "  You  took  the  bill  of  ladin;;  in  your 
Iiropriated  by  the  bill  of  lading  so  in-  <iwn  name,  but  you  inte.ided  it  for  lis." 
dorsed  beiiitf  sent  to  (lOiilden?  That  de-  l!ut  Wait  v.  Maker •''•  seems  to  me  in  point, 
pends  on  whether  liooldeii  was  in  any  and  the  reasoniii;;  of  Itaron  I'arke  decl- 
way  tlie  au'ent  of  the  defendants,  and  sive.  Nay,  it  is  stronyrer  t Irin  the  present 
otherwise  tlie  ease  is  as  thoiiKli  the  sellers  case,  for  there  it  is  manifest  LethbrldKB 
had  tliemselves  brouciit  the  bill  of  ladinR  liad  intended  the  barley  for  the  defendant, 
to  liristol:  they  retained  their  power  and  had  tidd  him  so;  liut  liavint;  done  an 
over  it  as  lonir  as  their  airent  held  it.  act  which  retained  the  [iroperty  in  hlni- 
Tlien  I  am  of  opinion  (iooldeii  was  in  no  self,  ami  there  lieiiiE  no  un(|ualilled  ti-nrler, 
way  defendants'  aRcnf.  It  is  said  the  it  was  held  not  to  pass  to  the  vendeeH. 
Sellers  intended  this  oil  lor  the  defendants.  In  conclusion,  I  say  there  was  no  delivery 
!  doubt  it  not;  tint  intention  is  iiiiiiia-  of  tlie  jioods,  because  the  only  thinz  that 
terial  till  it  iiianifests  itself  in  an  act.  If  a  could  be  called  a  delivery  was  the  ship- 
man  intends  to  buy,  and  says  so  to  the  meat,  and  that  was  none;  for  the  same 
Intended  seller,  and  he  intends  to  sell,  and  reason  there  was  no  barjiain  and  sale. 
Ha.vs  so  to  the  iuteniled  buyer,  there  is  a  which  supposes  the  >;o.)ds  areascertained; 
contract  of  sale;  anil  so  there  would  be  and  there  was.  for  the  same  reason,  no 
if  neither  liad  the  intention.  If  there  is  a  offer  To  supply  tiy  delivery  on  board,  and 
contract  of  sale,  and  the  seller  intends  to  no  offer  subsequent. 
np|iroprii\te  a  particular  chattel    in  fullill- 

tnent  of  it.  and  the  luiycr  inteiiils  to  ac-  POLLOCK,  C.  B.  I  have  to  deliver  the 
cept,  anil  accepts,  the  property  vests  in  jud^iinent  of  my  Brother  MAKTIN.  my 
Iliiii ;  and  so  it  would  had  there  been  no  Urotlier  CII.V.NMCLL,  ami  myself, 
such  intention.  If  the  buyer  refuses,  and  Tie  declaration  contained  several 
the  chattel  corresponds  with  the  contract,  counts.  The  first  stated  that  the  defeiid- 
the  vendor  has  a  risht  of  action,  not  be-  ants  agreed  with  the  plaintiffs  to  bay  of 
causeof  his  intention,  but  of  his  offer.  An  them  ten  tons  of  best  relined  rape  oil  to 
Intention  not  comiiiiinica ted  to  the  buyer  lie  shipix'd  free  on  board  at  Kotterilam  in 
Is  inima terial.  Tellinp:  it  to  an  indifferent  September.  Is."!",  at  i.As  l.'.s.  per  ton;  to  be 
person  is  no  more  than  thou;;h  he  had  paid  for  on  delivery  to  defemlnnts  of  the 
noted  it  in  his  inemoraiiilum  liook,  which  |ii||  nf  ladinji.  l>y  bill  to  be  accepted  by  de- 
ls no  more  than  though  it  existed  solely  in  fendants  at  tiiree  montlis  after  date,  to 
his  own  mind.  be  dated  ou  the  day  tif  sliipnient  of  the  oil. 

If  the  case   is    tried    b.v    the    |)leadinirs.  \ 

come  to  tlic  same  conclusion.     Kither  the  ,  ,  „  .  .     ^,~ 
Dhipment  was    to  bo  for  the  defendants  at  ;     i,'k  "ih    "O   n 

the   time  of   shipment,  or  it  was  to  be  ap-'  »    i'-     '«« 

proprinted    to    them    afterwariN.      In    the  '"  -^^  *  L-  "^S. 

former  case  the  declaration  iiiiis;  Uv  taken  "-  Kxeli.  ts>l. 
to  allege  such  a  shipment,  and  the  sccuoU  ;     "-  Kxcb.  1. 


102 


BROWNE  B.  HAEE. 


The  count  cfjntained  the  nocossary  aver- 
ments of  iieiformtinco,  and  stated  as  a 
breach  the  iionacceptaiice  of  the  hill. 

There  were  counts  for  goods  bargained 
an<l  sold  nnd  goods  sold  and  delivered. 
The  pleas  denied  liability,  and  there  was 
a  special  plea  which  raised  the  same  de- 
fence. 

At  the  trial  at  Guildhall  before  my 
Brother  Martin,  the  facts  proved  were 
these: — The  plaintiffs  were  merchants  at 
Kotterdam  and  the  defendants  merchants 
«t  Bristol,  and  tlirougli  Mr.  Goolden,  a 
broker  at  IJristol,  tliey  had  raafle  the  con- 
tract of  sale  in  the  terms  stated  in  thetirst 
eount.  On  the  Sth  September,  the  plain- 
tiffs (having  Ml  the  previous  day  advised 
that  the  sliif)niont  would  Ve  made) 
shipped  on  board  a  steamer  (a  general 
ship  I,  trading  between  Rotterdam  and 
Uiistol,  live  tons,  parcel  of  the  ten  tons 
agreed  to  he  sold  by  the  contract,  and  re- 
ceived a  bill  of  lading  made  out  deliverable 
"To  tiie  shipper's  order."  On  the  same 
day  they  indorsed  it  sp-ecially  to  tlie  de- 
fendants, and  enclosed  it  and  an  invoice 
and  a  billof  exchangedra  wn  in  accordance 
with  the  contract  to  Mr.  Gooltlen,  to  be 
delivered  to  the  <iefeiidants  and  their  ac- 
ceptance to  the  bill  obtained.  The  letter 
arrived  at  Bristol  on  the  afternoon  of  the 
10th,  in  due  course  of  post,  liut  after  busi- 
ness hours.  On  the  morning  of  the  lltli 
Mr.  Goolden  took  all  the  documents,  viz., 
the  bill  of  lading,  the  invoice,  and  the  bill 
of  e.xchauge,  and  delivered  thera  to  one  of 
the  defendants.  He  then  knew,  and  the 
fact  was,  that  on  the  night  of  the  Dtli  the 
steunier  iu  which  the  oil  was,  was  run 
down  in  tlie  Bristol  Channel  and  the  oil 
totally  lost.  In  about  two  hours  the  de- 
fendants returned  the  documents,  and  in- 
sisted that  under  the  circumstances  they 
were  not  bound  to  accept  the  bill  or  pay 
for  the  oil.  'J'he  action  was  bought  upon 
the  12tli  December,  and  the  jury  found  a 
verdict  for  the  plaintiffs,  and  stated  that 
in  their  opinion,  aecordinjj  to  mercantile 
usage,  the  risk  of  the  loss  of  the  oil  wa.s 
upon  the  defendants.  My  Brother  Mar- 
tin gave  leave  to  move  to  enter  a  verdict 
for  them.  A  rule  was  obtained  for  this 
purpose,  and  it  has  been  argued.  The 
object!. in  made  on  their  behalf  was  that 
the  oil  was  not  delivered  "free  on  board" 
within  the  true  meaning  of  the  contract, 
because  the  bill  of  lading  was  made  out 
deliverable  to  "  the  shipper's  order,"  and 
that  therefore  the  plaintiffs  had  theciin- 
trol  over  the  oil,  and  the  contract  for  the 
carriage  with  themasterand  owner  of  the 
steamer  was  made  with  them.  Several 
cases  were  cited  on  behalf  of  the  defend- 
ants. Wait  V.  Baker,  Turner  v.  Liverpool 
Docks,  Van  ('asteel  v.  Booker,  and  some 
■others.  We  think  they  are  all  clearly  dis- 
tinguishable. 

]f.  atthe  time  the  oil  was  snipped  at 
Rotterdam,  the  plaintiffs  had  intended  to 
continue  their  ownership,  and  had  taken 
the  bill  of  lading  in  the  terms  in  which  it 
was  made  for  the  purpose  of  continuing 
the  ownership  and  exercising  dominion 
•over  the  oil.  they  would  in  our  opinion 
have  broken  their  contract  to  ship  the  oil 
"free  on  board,"  and  the  jiroperty  would 
not  have  passed  to  the  defend-iuts;  but  if 


when  they  shipped  the  oil  they  intended 
to  perform  their  contract  and  deliver  it 
"free  on  board  "for  the  defendants,  wo 
think  they  did  jierform  it,  and  the  prop- 
erty in  the  oil  passed  from  tlieiii  to  the 
defendants.  If,  when  the  bill  of  lading  was 
niade  out,  they  of  purpose  and  design  had 
the  oil  made  deliverable  to  "shipper's  or- 
der" for  an  advantage  and  benefit  to 
themselves,  it  would  be  a  different  cMse; 
but  if  they  had  no  (diject  in  the  in;ittcr,— 
and  they  clearly  had  none,  for  upon  the 
same  day  they  indorsed  it  specially  to  tl.e 
defendants,  and  transmitted  it  to  Bristol, 
— we  think  it  is  exactly  the  same  thing  as 
if  the  bill  of  lading  had  originally  beeu 
made  out  deliverable  to  the  defendairts. 

It  was  said  that  so  long  an  the  bill  of 
lading  was  in  the  hands  of  the  plaintiffs 
or  of  their  agent  Mr.  (jooldcn,  they  had 
the  control  over  the  oil,  and  no  d<nibt  they 
had  to  a  certain  extent,  but  they  would 
have  had  precisely  the  same  control 
whether  the  bill  of  lading  was  made  out 
deliverable  to  the  defendants  or  to  the 
plaintiffs'  order,  and  indorsed  by  them  to 
the  defendants.  It  is  clear  that  it  was  iri- 
toncled  by  the  contract  that  the  plaintiffs 
shonld  have  this  control,  for  the  delivery 
of  the  bill  of  lading  to  and  the  acceptance 
by  the  defendants  of  the  bill  of  exchange 
were  to  be  contemporaneous  acts,  and 
the  plaintiffs  or  their  agent  were  not 
bound  to  deliver  the  bill  of  lading  until 
they  received  the  acceptance. 

In  all  the  cases  cited  on  behalf  of  the  de- 
fendants the  bills  of  lading  were  designed- 
ly and  of  purpose  made  out  to  shipper's 
order  to  prevent  the  iiroperty  passing,  and 
enable  the  vendor  to  retain  the  possession 
and  control  of  the  goods.  This  distin- 
guishes them  from  the  present  case.  As 
to  the  contract  in  the  bill  of  lading  being 
originally  made  with  the  plaintiffs,  we  do 
not  think  it  at  all  affects  the  terms  as  to 
the  shipment  "free  on  board,"  and  espe- 
cially since  the  statute  IS  &  1".)  Vict.  c.  11], 
which  transfers  the  contract  of  the  bill  of 
lading  to  the  indorsees. 

In  our  opinion,  therefore,  the  law  coin- 
cides with  the  view  taken  liy  the  jury,  and 
the  plaintiffs  are  entitled  to  recover  upon 
the  special  count.  We  also  think  they 
are  entitled  to  recover  ujion  the  count  for 
goods  sold  and  delivered,  for  u|)on  the  de- 
livery on  board  the  general  ship,  we  con- 
sider the  property  vested  in  the  defend- 
ants, and  that  therefore  this  count  is 
maintainable. 

It  was  said  that  the  defendants  could 
not  insure  tlie  oil.  This  is  not  so  in  fact, 
for  by  a  letter  of  the  7th,  which  was  com- 
inunicaled  to  them  on  the  9th,  they  were 
informed  that  the  shipment  would  take 
place  on  the  following  day  ;  but  whether 
they  had  the  opportunity  to  insure  or  not 
is  immaterial  to  the  present  question, 
which  depends  upon  the  law  as  to  con- 
tracts and  the  transfer  of  property  to  a 
vendee  upon  a  sale. 

(4  Hurl.  &  N.  822.) 

This  was  an  appeal  against  the  decision 
of  the  court  of  exchequer  in  discharging  a 
rule  to  set  aside  the  verdict  found  for  the 
plaintiffs   and   enter  it  for  the  defendants, 


BROWNE  0.  nAUE. 


KW 


piiPHunnt  to  leave  reserved  at  tlie  trial. 
The  plcjiiliiins  and  material  fai-tn  of  the 
CHHC  are  fiilly  Htatcrl  In  the  report  of  tlie 
CHHe  in  tlic  e'oiirt  lielow.  [li  H.  &  X    4^4.) 

iJeforc  i:itlJ:,  UIM^IAMS,  CltOWDKK, 
CI{(J.\IM'().\.  WILLKS,  and  MILL.  J.J. 

Hu.vinond  arsncd  fr)r  the  api.ellfuits  |  the 
(lefendaiitK)  in  lant  Kaster  vaeatinii.  I'ri- 
dean.x,  (lUitt  with  him,)  for  the  |>laintiffH, 
(May  \s.)  I{uj'uuind,  in  re|ily. 

'riie  jiiiJKuient  of  the  court  was  now  de- 
livered liy 

EHIJC,  J.  In  thin  ease  we  are  of  opin- 
ion lliat  the  judgment  of  the  court  below 
ehould  l)e  allirmed. 

The  contract  was  for  tlio  purchase  of 
nnascert.iiued  goods,  and  tlio  quection 
has  t)een,  wlien  tlie  i)roperty  i)asHeil.  For 
the  answer  tlie  contract  must  bo  resorted 
to;  and  under  tliat  we  think  the  property 
passed  when  tlie  (roods  were  placed  "free 
on  board,"  in  performance  of  the  con- 
tract. 

In  this  class  of  cases  the  (inssint;  of  the 
property  may  depend,  according  to  the 
contract,  eitlier  on  mutual  consent  of 
both  parties,  or  on  tlie  act  of  the  vendor 
coiniiiunicated  to  the  purchaser,  or  on  the 
act  of  the  vendor  alone. 

Here  it  passed   by   the  act  of  the  vendor 


alone.  If  the  bill  of  lading  had  inaile  the 
K'Jods  "  to  be  delivered  to  tlie  order  of  the 
consignee,"  the  pahsing  of  the  projierty 
would  be  clear.  The  bill  of  ladinu  made 
them  "to  be  delivered  to  the  order  of  the 
consignor, "  and  he  imiorsed  it  to  the  or- 
der  of  the   consignee,  and    heiil    it     to  IiIm 

agent    for    tlie   couslgi Thus    the    real 

(inestlm  lias  been  on  the  intiiitiun  witli 
which  the  bill  of  Inding  was  taken  in  thJH 
form:  whether  the  consignor  shlppeil  the 
goods  in  performance  of  Ills  cont rar*  to 
place  them  "free  on  iio.-ird."  or  for  the 
pui'iiose  of  retaining  a  control  over  them 
and  coiitiMiiing  to  be  owner,  contrar.v  to 
the  contract,  as  in  the  case  of  \'.'ull  v. 
Maker,"  and,  as  is  explained  In  Turner  v. 
The  Trustees  of  tlie  Liverpool  Docks"  and 
Van  Casteel  v.  Itooker.**  The  i|ueHtio'i 
Vvas  one  of  fact,  and  must  be  taken  to 
li.'ivebeen  disposed  of  at  the  trial;  the 
only  (luestion  before  the  court  below  or 
before  us  being,  whether  the  mode  of  tak- 
ing the  bill  ot  lading  necessarily  prevented 
the  property  from  passing.  In  our  opin- 
ion it  (lid  not.  under  the  circumstances, 
and  therefore  the  judgment  must  be  af- 
lirnied.     Judgment  allirmed. 


'  2  Exch.  1. 
'(5  Excli.  543. 
'2  Exch.  Uai. 


BROWNFIRLD  v.  jnilNSOX. 


10- 


mtOWN'riKLD   ft   al.    r.   JOHNSON'   et   ul. 

(IS  Atl.  Itcp.  54."5,  12S  Pa.   St.  254.) 
Siipri'inp  Court  of  rcniisylvania.    Oct.  7,  18S0. 

Error  to  court  of  common  pleas,  I'hiladel- 
pliia  county. 

Ilflore  (;i!t-:EN,  Clakk,  William.s,  ilc- 
('oi.LiM  and  Mjt( HELL,  J.J 

M.  Hampton  Todd,  for  pluinlilTs  in  error. 
John  W.  Jolinaon,  for  defenJants  in  error. 

Ci.AitK,  J.  A  complete  understanding  of 
tliR  rul(,'.s  of  law  governing  this  case  involves 
a  brief  statement  of  tlie  material  facts:  On 
the  2d  day  of  Deceiid)er,  1«86,  lirowulield  & 
Co.,  the  delendanls,  gave  an  order  to  Law- 
rence Johnson  &  Co.,  to  punliase  for  them  in 
Brazil  oU'J  ba^s  best  quality  of  new  Brazil 
nuts,  of  the  first  receipts,  payment  to  be  made 
in  cisli  on  arrival,  or  by  iji  i-day  note,  etc.,  at  the 
defendants'  option,  tlie  pl.iinl iffs  to  cablei)rice 
at  the  time  of  shi|>ment.  On  the  same  day 
the  plaintilTs  replidl,  stating  that  Bi-azil  nuts 
were  not  bought  by  the  b;ig,  but  by  hectoli- 
tres, a  measure  which  in  past  years  averafjed 
from  100  to  120  pounds;  tliat  the  nuts  came 
in  bulk  in  the  steamer,  and  the  defendants 
would  have  to  furnish  the  bags  on  arrival  in 
Xew  York;  and  as  "the  outturn  of  the  meas- 
ure is  uncertain"  they  jiroposed  to  order  4.50 
hectolitres,  etc.  To  this  the  defendants  re- 
])lied  by  telephone:  "C)ider  400  hectolitres, 
and  buy  only  the  very  best  nuts  oltainable," 
The  plaintiffs  placed  the  order  in  the  hands 
of  their  correspondents.  La  lioipie,  Da  Costa 
&  Co.,  I'ara,  Brazil,  who  undertook  the  pur- 
chase, and  on  the  ytli  of  February  following 
advised  the  plainlitTs  of  shipment  per  steamer 
I'ortueiice,  upon  lioard  of  which  were  nearly 
G.UUO  heetolilres  of  Brazil  nuts  for  other  par- 
ties.  Of  tills  shipment, and  of  the  piice.  no- 
tice Was  on  the  same  day  given  to  the  defend- 
ants. I'jwn  the  arrival  of  the  i'ortueiice  in 
New  York,  Lawrence  Johnson  &  Co.  handed 
to  the  defendants  a  delivery  order  for  4U0 
hectolitres  of  Brazil  nuts  in  bulk,  in  separate 
hold,  on  board  the  I'ortuence,  with  copy  of 
original  invoice,  and  the  idaintiffs'  bill, 
amounting  to  .'?3,441.18.  The  invoice  was 
for  :j12  hectolitres  al  15,150  rtis  each,  and  8S 
hectolitres  at  14,000  rc/.v  each ;  showing  th.it 
tlio  nuts  had  been  orij^inally  purihased  in 
two  spp.irate  lots,  and  at  different  prices. 
The  defendants,  witli  the  delivery  order  in 
their  posse.^sion,  proceeded  to  New  Vork,  and 
went  on  board  the  I'oitueiice,  where  they 
found  one  consignment  of  nuts  in  tlie  name 
of  Hrowiilield  &  Co.,  but  the  plaintiff's  store- 
keeper informed  tliem  that  the  400  hectolitres 
in  ipiestion  were  emluaced  in  a  consignment 
of  582  hectolitres  of  Brazil  nuts,  in  separate 
hold,  in  the  name  of  the  plaintiffs.  The  de- 
fendants thereupon  refused  to  receive  any 
poriion  of  these  nuts  as  an  execution  of  their 
order.  The  phiintilTs  tendereil  to  the  defend- 
ants the  whole  582  liecto'.itres  or  400  hectoli- 
tres thereof,  at  their  option,  at  the  invoiced 
prices;  which  tender,  in  either  alternative, 


til"  defendants  declined  to  accept.  The  plain- 
tilTs afteiwartis  tendered  4i)0  hectolitres  at 
the  aveiage  pi  ice,  which  the  defendants  also 
declined.  Subsefjiieiitly  the  plilntifTs  sepa- 
rated the  400  hectolitres  from  the  lot,  and 
notified  the  defendants  of  tli'ir  weiglit,  but 
the  defendants  absolutely  declined  to  a'-cept 
the  nuts  on  any  of  the  sever.il  propositions 
made  by  the  plainlfTs.  The  .582  liedolitres 
were  made  np  of  tsvo  lots, — one  of  ;)1"2  liec- 
tolitres,  invoiced  at  1.5.1.50  reis;  the  other  of 
270  heetolilres,  invoiced  at  14,0<iO  /•et>;  88 
heetolitres  of  the  latter  were  invoiceil  to  tlio 
defendants,  and  the  residue,  being  182  liec- 
tolitres,  to  Lawrence  Johnson  &  Co.,  for  ac- 
count of  La  Itoijue,  Da  Costa  &  Co.,  who,  it 
is  said,  according  to  the  method  of  dealing  in 
Brazil,  in  order  to  get  88  hectolitres  to  (ill 
the  order,  were  obliged  to  buy  a  larger  lot. 
That  all  parties  acted  in  good  faith  is  a  fact 
found  liy  the  jury,  and  the  case  turns  upon 
the  question  wli<-ther  the  defendants'  order 
was  properly  and  legally  executed. 

If  the  purchase  had  been  of  400  hectolitres 
only,  shipped  in  sejianite  hoM,  there  could  be 
no  question  as  to  the  defendants'  liability  for 
the  price.     Wli:it,  then,  was   the  effect  of 
placing  the  182  liectoHtre^  in   the  same   hold 
w  ith  the  400  invoiced  to  the  defendanl.s?    It 
may  be  con<e.led  as  a  geneial  riiie  th.it,  as 
between  vendor  and  vendee,  when  it  is  sought 
to  compel  a  party  to  pay  for  goods  wli.cli  he 
lias  refused  to  accejit,  there  can  be  no  recov- 
ery unless  the  order  has  been  strictly  and  lit- 
erally fullilled.     The  buyer  is  entitled  to  re- 
fuse the  whole  of  the  goods  tendered  if  they 
exceed  the  quantity  agreed,  and  tlie  vendor 
'  liaa  no  right  to  insist  upon  the  buyer's  ac- 
■  ceptance  of  all,  or  upon  the  buyer's  selecting 
out  of   a   larger  qii mtity  delivenil.     Benj. 
Sales.   §   lo:i'i.     To  tlie  «:inie  effect   are   the 
cases  cited  by  the  plaintiffs  in  error.     With 
relereiice  to  quaiil.iy,  iiowever,   the  rule  is 
less  rigid  wheie  goods  are  ordered  fromacor- 
'  res|)ondent  who  is  agent  for  buying  them. 
(Ireland  v.  Livingston.  L.  U.  2  o'.  B.  '.fj;  36 
,  Law  J.  W.  B.50;  L.  I{.5  II.L.:i'J5:)  forthorelu- 
I  tion  of  vendor  and  vendee  which  finally  results 
]  is  preceileil  by  the  relation  of  piincipal  and 
'  agent,  anil  the  agent  in  such  a  transiiction  is 
'  necessarily  invested  with  some  degree  of  dis- 
cietion  in  making  the  purchase.     See,  also, 
Johnston  v.  Kershaw,  L.  K.  2  Exch.  82,  'M 
Liw  J.  Exch.  44.  and  Jefferson  v.  Qnerner, 
:{0  Law   l'.  (.\.  S.)  ^^■l7.    It  must  be  conctnietl, 
however,  that  the  piircliase  and  temler  of  582 
hectolitres,  upon  an  order  for  41H.),  would  in- 
!  volve  a  wider  discretion  than  would  be  allow- 
able under  the  special  fact.s  of  this  ciLse,  even 
as  between  principal  and  agent.     In  thiscase, 
I  however,  the  plaintiff's  cornspondent  pur- 
1  chased  for  and  invoiced  to  the  defendants  400 
I  hectolitres  only.  an. I  that  quantity  was  ten- 
dered.    The  remaining  182  hectolitres  were 
not  invoiced  to  the  delendants.  although  the 
plaintiffs  propose<l  that  the  defcnilants  might 
have  them  if  they  chose  to  take  tlieiu.     The 
40<)  heclolitres  of  nuts  unquestionably  liecame 
the   pro|ierty  of   the  defendants   when  pur- 


lOG 


BKOWNFIELD  v.  JOHNSON. 


chased  in  IJia/il.  f'lr  lliey  were  purchased  up- 
on tlieir  order.  By  force  of  that  order  the 
jihdntiffs  became  tlie  dflVtidants'  agent,  with 
autliority  to  constitute  an  agent  in  I'ara  for 
its  execution;  and  the  nuts  were  bouglit  in 
virtue  of  tlie  autliority  tlius  conferred. 

Tlio  only  question," therefore,  would  seem 
to  be  upon" the  edVct  of  the  shippiiisj  of  the 
whole  lot  of  582  hectolitres  in  one  hold. 
It  was  shown  that  this  was  the  usual  meth- 
od of  shipping,  especially  when  the  orders 
were  small.  There  was  no  effort  to  es- 
tablish a  custom  of  this  kind,  but  simply 
to  show  that  tills  was  Uie  usual  and  ordinary 
metliod  pursued  in  tlie  shijiping  traile.  The 
defendants  had  a  right  to  suppose  tliese  goods 
would  be  shipped  in  the  usual  manner,  unless 
they  directed  otherwise,  and  that,  altliough  in- 
termingled with  others  in  theforKard  hold  of 
the  vessel  for  transportation,  they  would  be 
separated  at  the  phice  of  delivery.  The  nuts 
in  question  were  of  the  same  quality;  they 
were  bought  at  different  prices,  but  the  evi- 
dence is  clear  that  they  were  of  uniform  qual- 
ity. The  weight  of  American  authority  sup- 
ports the  proposition  that,  when  property  is 
sold  to  be  taken  out  of  a  specilic  mass  of  uni- 
form quality,  title  will  pass  at  once  upon  the 
making  of  the  contract,  if  such  appears  to  be 
the  intent.  Oil  in  a  tank  and  grain  in  an  el- 
evator may  serve  as  illustrations  of  this  rule. 
Where,  however,  the  properly  sold  is  part  of 
a  mass  made  up  of  units  of  unequal  quality 
or  value,  such  as  cattle  in  a  herd,  selection  is 
essential  to  the  execution  of  the  contract,  and 
of  course  the  rule  cannot  apply.  Benj.  Sales, 
477-531,  and  cases  there  cited.  The  storage 
of  oil  in  tanks  and  of  grain  in  elevators,  al- 
though not  univeisal,  is  the  usual  and  ordi- 
nary means  employed  by  large  dealers  in 
those  commodities;  and,  while  no  custom  of 
that  kind,  technically  speaking,  could  be  es- 
tablished, the  usage  of  the  trade  anfl  general 
course  of  business  in  this  country  is  well 
known.  In  view  of  the  necessities  which 
grow  out  of  such  usage  the  American  courts 
have  departed  from  the  rule  adhered  to  in 
England,  and  have  recognized  a  rule  for  the 
delivery  of  this  class  of  property  more  in  con- 


formity with  the  commercial  usages  of  the 
country.  A  distinction  is  made  between 
those  cases  where  the  act  of  separation  is 
burdensome  and  expensive,  or  involves  se- 
lection, and  tho-^ie  where  thearticle  is  uniform 
in  bulk,  and  the  act  of  sejiaration  throws  no 
additional  burden  on  the  buyer.  In  the  lat- 
ter class  of  cases  a  tender  of  too  much,  from 
which  the  buyer  is  to  take  the  proper  quan- 
tity, is  a  good  delivery.  Id.  1030,  note.  See, 
also,  Kimberly  v.  Patchin,  19  N.  Y.  330; 
Hutchison  v.  Com.,  82  Fa.  St.  472;  Wilkin- 
son V.  Stewart,  85  Pa.  St.  255;  Bretz  v.  Diehl, 
117  Pa.  St.  589,  11  Atl.Rep.  893. 

The  case  at  bar  bears  no  analogy  whatever 
to  Stevenson  v.  Burgin,  49  Pa.  St.  44,  for  all 
that  is  decided  by  that  case  is  that,  in  a  con- 
tract for  a  tixed  quantity  of  merchandise  to  be 
delivered  on  board  a  vessel,  the  purchaser  is 
not  bound  to  accept  and  pay  for  a  larger  quan- 
tity. The  principle  has  no  application  to 
the  evidence  in  this  case.  The  case  at  bar 
bears  a  closer  analogy  to  Lockhart  v.  Bonsall, 
77  Pa.  St.  53.  In  that  case  a  tender  of  5,0tl0 
barrels  of  oil  was  made  by  Lockhart  to  Bon- 
sall out  of  a  bulk  of  5,981  barrels,  containe  1 
in  118  bulk  cars.  As  it  was  the  duty  of 
Bonsall  to  pump  the  oil  from  the  cars  into  the 
tanks  of  the  Anchor  works,  which  had  been 
designated  as  the  place  of  delivery,  it  was  held 
that  Lockhart  was  not  bound  to  set  apart  the 
precise  quantity  named  in  the  contract  before 
offering  to  deliver.  So,  here,  the  measuring 
of  the  nuts,  and  their  removal  from  the  ves- 
sel, was  the  work  of  the  defendants,  and  as 
the  article  was  uniform  in  bulk,  selection  was 
of  no  consequence,  nor  was  the  act  in  any 
sense  burdensome  or  expensive;  for,  assum- 
ing that  the  whole  bulk  was  to  be  measured, 
yet  the  expense  attached  to  the  whole,  and  each 
part-owner  was  liable  to  share  it. 

We  are  of  opinion  that,  when  the  nuts 
were  delivered  on  board  the  Portuence  at 
Para,  the  title  to  400-582  of  the  bulk  belonged 
to  the  defendants,  and  that  upon  the  arrival 
of  the  vessel  at  New  York  the  tender  of  the 
582  hectolitres  from  which  the  defendants 
were  invited  to  take  their  share  was  a  good 
delivery.     The  judgment  is  affirmed. 


BUFFINGTOX  v.  GEHUI.SU. 


109 


TUIFIXOTOX  ct  nl.  t.  GERRISH  et  al. 

(15  Mass.  150.) 

Siipn^me  Judicial   Court  of  Massachusetts. 
Cunilicrlaud  and  0.\ford.    May  Term,  1818. 

Keplevlii  for  two  pipcH  of  brandy  and 
HiHidr.v  otlit'i-  iirtic'IcH  of  nicrcliaudi/.c'.  The 
dcl'eiidantH  i)li';idiMl  propert.v  in  oneEzekit-l 
WiilUcr,  travcrHintr  the  property  of  the 
plainliffH,  and  iHmie  wan  joined  on  tlic 
traveise.  A t  tlii>  trial  of  thin  issue  hctore 
Wilde  J.  at  tlie  last  October  term  In  this 
comity,  it  waH  admitted  liy  the  plaintiffs, 
that  the  articles  in  (luestion  weie  solil  hy 
them  to  Walker,  and  that  his  notes  for 
the  stipulated  price  were  received  by  them, 
Iiayalilein  two  and  four  months  from  the 
date:  hnt  thev  contended  that  the  sale 
\v(is  void,  on  the  ground  of  fraud  and  do- 
eeplhtn  piactised  upon  t  hem  liy  Walker.  | 
It  was  in  eviilence  lliat  Walker  was  an  in- 
hahitant  of  rorlland,  and  In  April  INK! 
applied  to  tlie  plaintiffs,  merchants  in  Uos- 
ton,  ti>  whom  he  was  a  stranser,  for  the 
piinliase  of  Roods;  and  that  he  represent- 
ed himself  ns  a  merchant  enKa^cd  lar^el.v 
in  Imsiriess,  huvinj::  one  store  in  Portland 
and  anotlier  In  the  conntry.  and  of  iin- 
doulited  aliility  to  pay.— The  plaintiffs 
tlicn  wislied  for  the  recoinmendntion  of 
some  i>ne  known  to  them,  and  Walker  re- 
ferred them  to  a  .\Ir.  McLellan.n  merchant 
in  lio.ston,  for  information:  of  whom, 
however,  for  some  reason  which  did  not 
appear,  the  plaintiffs  made  no  in(iiiiry: 
Imt  conlidinf;  in  the  representations  made 
b.v  Walker,  completi'd  the  sale,  and  deliv- 
ered the  good.s.  Whereupon  Wal!;er  im- 
mediately transported  them  to  Portland, 
where  tliey  were  attached  liy  the  defend- 
ants, lieiiiK  deputy-sheriffs  of  this  county, 
at  the  suit  <jf  diver.s  creditors  of  Walker, 
to  whom  he  had  been  indel)ted  for  several 
years.  The  plaintiffs  then  proved  that 
the  representatiniis  made  liy  Walker  were 
falseand  frnndiilcn t :  that  he  had  no  store 
In  Portland,  althoiish  he  had  one  there  a 
ntiiJilierof  years  aso  but  soon  failed,  and 
had  since  b("en  wholly  witliout  visilile 
Iiroperty  or  credit,  and  deepl.v  involved  in 
debt.  The  plaintiffs  lindinK  that  they  had 
been  imposed  upon  by  Walker,  pursued 
him  to   Portland,  where   they   found   the 


KoodH  in  queHtlon,  wlilch  lind  been  nt- 
tacheil  by  thedefendants,  ns  above  stated  ; 

wherenpon     they    c menceil      this    suit. 

The  indue  instructed  the  jury  that.  If  they 
HJiould  be  of  oiiiidon,  that  the  sale  of  the 
Roods  was  effected  by  the  fraudulent  inlH- 
representations  and  (h'eeption  of  Walker. 
It  would  be  Hullicient  to  rentier  the  sole 
void;  and  that  it  niiulit  be  avoided  by  the 
plaintiffs,  notwilliKtandiiiR  the  ntfaeh- 
ments  of  the  bona  lidecieditors  of  Walker, 
without  notice  of  the  fraud  :  ami  the  jury 
returned  t;ieir  verdict  for  the  plaintiffs  ac- 
cordingly. If  the  said  ilirectioiM  to  the 
jury  were,  in  the  opinion  of  the  whole 
court,  Hubstantlaily  correct,  ju<lcment 
Was  to  be  rendered  upon  the  verdict; 
otherwise  the  plaintiffn  were  to  heeoine 
nonsuit. 

Mellen  and  Todd,  for  defendants.  Lour- 
fellow,  for  plaintiffs. 

PER  CURIAM.  ItlsnotneresHaryinthlH 
case  to  conHlder.  whether  the  property 
could  be  reclaimed  by  the  plaintiffs,  out 
of  the  hands  of  a  bona  tide  purchaser,  Ik- 
nor.'int  of  the  fraud,  by  which  Walker  ob- 
tained possession.  As  the  possession  of 
the  Roods  by  Walker,  with  the  appear- 
ance of  ownership,  was  witli  the  con«ent 
of  the  plaintiffs,  it  is  probable  such  sale 
would  be  held  good. 

The  case  here  is  very  different.  The 
plaintiffs  endeavour  to  recover  their  mor- 
chandlze,  as  soon  ns  the  fraud  practised 
upon  them  is  discovered.  It  never  had 
become  the  property  of  Walker,  and  the 
riKht  of  the  plaintiffs  to  reclaim  it  nRainst 
him  is  indisputable.  He  had  done  no  act, 
by  which  any  of  his  creditors  had  been 
deceived  with  respect  to  tliis  property;  for 
their  debts  all  existed  before  he  acquired 
the  possession.  They  claim  title  to  it  aa 
his,  not  ns  their  property  :  yet  they  can- 
not, under  the  circumstances  proved,  and 
the  fact  of  fraud  found  by  the  jury,  estalj- 
lish  it  as  Ills.  They  are  in  the  san)e  condi- 
tion, as  to  tlieir  debts,  they  were  In  before 
the  commission  of  the  fraud;  and  they 
ouRht  not  to  reap  t|ie  fruits  of  it,  no 
credit  haviiiR  been  Riven  on  account  ol 
this  property. 

Judgment  on  the  verdict. 


BLLWIXKLE  v.  CRAMER. 


Ill 


lUI.WIXKLF,  Pt  al.  v.  CRAMER  et  al. 

(3  S.  K.  Koi..  770,  27  S.  C.  370.) 
SiiiMi'inc  ('i)iiii  iif  Siiiitli  Caruliim.    Oct.  14, 

18,S7. 

A|p|M'iil  fi'Din  roinii'cxi  plonH  circuit  court, 
Cluirii'Mtiiii  CKiiiit.v;   KerHJiinv,  .JudK'". 

llii.vrii'A;  I'ii'kcii,  fin- appclluiit.  Siiiious 
&  (Jiijiiicliiiaiiii,  u|i|ioHi>(l. 

Mc(i(>WAN,    J.      Thin    woh    nil    action 
iiU'ii'int   the  (l(  feiidnutH  Cramer  tk  lUohnic 
for   :(pl,l:is.7(l,  (hiiuimcH   Kustaincil    upon    a 
lot  of  Klicllcd  com  in  HactcH  piircliiisfd  from 
tlicni    l>.\     tiic   plaintiffs   on    .May    IT,   l^^-J. 
'I'lii' lollow  inK  writing  "aH  otlciod    as    tliu 
written  contract  of  the  partie.s: 
••.May  ITIIi.     Solil  II.  lluUvinkle  &   Co.— 
5,ii!i(l  I'.u.  mixed  HHci<ed  corn  (a  TIJ^c. 
1.(100    ••         ■•  •■  ••       ••   so;^. 

".Sclioont-rMliipmcnt,  payable  on  arrival. 
No  wliarfaije. 
[Sij^iiedJ  "Cramer  &  lUolime." 

At  tlie  time  Hie  purcliawe  waH  made,  the 
corn  was  not  in  tliecily;  hot  Kooii  after, 
nhout  tlie  laKt  uf  May  or  lii'Mt  of  .lune, 
the  well  ooner  May  Williams  reaidied  Charles- 
ton with  tlie  corn.  I'poii  its  arrival  in 
tlie  liarhor,  the  plaintiffs  were  notilied  of 
the  fact.  Ml'.  Il.iesloop,  one  of  the  plain- 
tiffs, went  down  to  the  vessel.  and.MndiiiH 
ahont  l.'iO  sackH  out,  examined  the  corn  in 
two  or  three  of  them,  and  found  that  "it 
Hcemed  ^^ood."  (In  .lune  4th,  before  all 
the  corn  wan  out  of  the  vessel,  the  de- 
fcnilants  presented  their  acc(»nnt  for  the 
corn,  ilfJ. 400. J.'i.  The  odd  cents  were  paiil, 
and  the  plaintiffs  (jave  their  note  as  fol- 
lows: ••!iP4,400.  (  li;irl.'stoii.  S.  ('.,  .lune  4, 
1SK4.  Forty  days  after  dati'.  we  [promise 
to  jiay  to  tlie  order  of  Cramer  &  lilohme 
fortyf.Mir  hundred  dollars  at  any  city 
liaiik.  Valiiereceived.  Due  ,Iuly  I'.t-'J:,'.  II. 
liulwinkle  i  Co."  Indorsed  as  follows: 
"  I'ay  A.  lieipiest,  without  recourse. 
Cramer  &  lilohme.  A.  I!i  quest.  "  Writ- 
ten across  the  f.ice:  "  I'aiil  July  L'ii.  IssJ." 
.\  few  (lays  alter  the  note  was  yiven.  in 
removing  the  corn  it  was  discovered  that 
some  of  the  sacks  were  dam.iued.  Imiue- 
(liate  notice  was  niven  to  the  difendants. 
hut  as  they  refused  to  correct  the  matter, 
or  to  have  anythiiif;-  to  do  with  it,  the 
corn  was  ••surveyfMl  '  by  two  KenHenien 
at  the  re(iiieHt  of  the  "Merchants'  E.\- 
cliaiiue,"  and  1.470  s;icks  were  found  to 
contain  corn  in  "a  damp,  Idue-eyed,  and 
musty  condition."  This  damaged  corn 
was  sold  at  auction,  .-iiid  bronyrht  less 
than  tlie  price  of  >;oo(l  corn  of  the  sanie 
kind  by  $l.l:',S.70.  In  the  mean  time  iind 
before  the  note  fell  due,  the  defendants 
trnnsferred  it,  niid,  as  the  defense  of  un- 
soundness of  Hie  corn  could  not  lie  made 
to  it  in  the  hands  of  an  innocent  holder 
before  due.  the  plaintiffs  paid  it,  and 
lirou^lit  this  action  for  the  (lama;;eH  sus- 
tained. 

The  caiisecanie  on  for  trial  befote  .Tudce 
Kersliiiw  and  a  jury.  A  witness,  one  of 
the  defendants,  was  asked  whelher  they 
(the  (Ipfendants)  contracted  in  their  indi- 
vidual capacity,  or  in  what  capacity. 
The  plaintiffs  objected  to  the  (|uestion: 
clainiiiiy;  that  parol  testiiiKiny  could  not 
be  uffered  to   alter    the    written   contract. 


The  judK<!  admitted  the  parol  evidence. 
Haying:  "I  do  not  regard  this  paper, 
which  is  a  mere  memorandum  of  contract 
taken  down  at  the  time,  as  iirecludiii); 
testimony  as  to  the  conversation  between 
the  [larties,  w  liieh  nii;;lit  in  any  way  throw 
liuht  on  the  contract  they  were  making. 
If  there  (larties  knew  from  any  source,  at 
the  time  that  the  paper  was  made,  tliat 
they  were  actually  dealin;^  with  the  de- 
fendants as  agents.  I  think  it  can  lie 
shown  as  part  of  tlie  res  };-estie,"  etc.  The 
testimony  beiiiK  admitted,  the  jury,  un- 
der the  charge  of  the  jud^e,  found  for  the 
defendants. 

The  plaintiffs  appeal  upon  the  ftdlowiiiK 
e.\ce|)tions  :  "(1)  'I'hat  his  honor  commit- 
ted error  in  ruling  tiiat  the  paper  or  con- 
tract sued  on  >vas  a  mere  memorandum 
of  contract,  and  did  not  preclude  testi- 
mony as  to  con  versa  I  ions  between  the 
parties  which  mi(;:lit  in  any  way  throw 
liflht  on  the  contract,  or  the  nature  of  the 
contract,  they  were  iimKiim,  and  that  if 
the  plaintiffs  knew  from  any  source,  at 
the  time  that  pafier  was  made,  that  they 
were  dealing  with  the  defendants  as 
ORerits,  it  coiilil  be  shown  as  part  (jf  the 
res  Kcsta'.  (L'l  Recause  his  honor  ruled 
that  If,  in  this  cp.se.  there  was  a  clear  un- 
derstandiiif;  between  the  parties  that  de- 
fendants were  acting  as  a;;en ts.  such  un- 
derstanding was  not  e.\clu(le(l  by  that 
paper.  (;ti  liecause  his  honor  admitted 
parol  evidence  on  behalf  of  defendants, 
after  olijiction  thereto,  as  to  eonversa- 
tions  between  the  parties  tending  to 
throw  liKlit  on  tlie  contract,  or  nature  of 
the  contract,  they  were  makini;.  (4)  Be- 
cause hishouorailmitled  pand  testimony, 
on  behalf  of  defendants,  leiidint;  to  show 
that  defendants  were  dealing;  as  amenta, 
and  not  as  principals,  in  siKniiiK  the  writ- 
ten contract  sued  on  by  plaintiffs,  (.t) 
Ijecause  his  honor  admitted  parol  testi- 
mony, on  behalf  of  defendants,  tendiii};  to 
show  in  what  character  defeiidnnts  were 
conlraetint;,  whelher  as  au'enls  or  prin- 
cipals, when  they  si-rned  the  contrac-t  <»r 
writinj;  sued  on.  and  put  in  evidence  by 
plaintiffs,  .(i)  liecause  hi.-)  honor  erred  iu 
instrnctinir  tlie  jury  as  follows:  "if  the 
jury  Iind  that  the  defendants,  or  either  of 
t  hem,  sitjMed  the  written  contract  offered 
in  evidence  by  the  plaintiffs,  they  are  per- 
sonally bound  by  said  contract .  unless  it 
was  (listinctly  understood  byliotli  par. 
ties  that  the  defend/ints  were  not  to  be 
personally  liable  lor  defects  in  the  article 
purchased.'" 

We  ay;ree  with  the  circuit  judRe  that  in 
this  stale,  as  to  personal  property,  the 
rule  of  law  is  that  •'sound  price  rei|uireM 
sound  property,"  and  the  contract  for  the 
corn  must  be  read  as  if  these  words  were 
added,  •■(•orii  warranted  to  be  sound."  A 
part  of  Hie  corn  turned  out  to  lie  "  un- 
sound," and  it  would  seem  that  the  plain- 
tiffs are  entitled  to  redress  on  the  war- 
r;inty.  unless  they,  in  some  way,  waived 
tlieir  riylits.  Soiiietliinj;  was  said  in  the 
case  about  the  pbiiii  tills  liavini;  accepted 
tiiecorn  tor  tlieiii-iclves  after  an  examiia- 
tioii :  but.  as  there  is  no  reference  to  tl  at 
subject  in  tiie  exeepi  ions,  the  matter,  of 
course,  is  not  no^-  before  us. 

.\s  we    understand    it.  tlic   sole  nuestion 


11-2 


BUI.WIXKLK  V.  CRAMER. 


in  the  (.'ose  is  as  to  who  is  lial)k', — whi't'ier 
the  (IcfL'iidaiits,  who  solil  tin;  corn,  signed 
the  a;;i-e(Miieiit.  anil  took  the  iiotiM.f  plain- 
tiff.s,  and  realized  upon  it  in  tlieir  own 
name,  had  the  i-i«ht,  at  tlie  trial,  to  intro- 
du<'e  parol  tesliniony  tending  to  show 
that  they  were  not  aetiiiK  n.s  principals, 
but  «H  afients  of  Itoljert  Turner  &  Son,  of 
Baltiinore,  and,  the  cojitract  of  plaintiffs 
liuvins  l)een  made  with  Turner  &  Son 
tlii'oui^li  tlieni,  they  are  not  liable  Individ- 
nally.  The  «iucsti<>n  as  to  the  aduiissibil- 
ily  of  the  evidenee,  seems  to  have  l)een 
etinsidered  in  two  nsiiects:  First,  wheth- 
er the  paper  offered  as  the  aRreenient  was 
such  a  eoiitraet  in  writinfi  ay  to  l)e  within 
the  rule  whicli  excludes  parol  testimony; 
and.  if  so,  second,  whethi.'r  the  judse  erred 
in  cliar}iin«  the  jury  "  that  the  defendants 
were  not  lialile  if  it  was  distinctly  under- 
stood liy  lioth  parties  that  the  defendants 
were  not  to  ho  personally  lial)le  for  defects 
in  the  article  sold.  " 

All  the  authorities  a^ree  that,  as  a  jjen- 
eral  and  most  indexible  rule  of  evidence, 
"whenever  written  instruments  are  ap- 
pointed, either  by  the  I'equirements  oi  the 
la w,  or  by  the  co'upact  of  parties,  to  be 
the  <lepi)8itories  and  nu  inorial.->  of  truth, 
any  other  evidence  is  e.xcUuled  from  being 
used. either  as  a  substitute  forsuch  instru- 
ments, or  to  contradict  or  alter  them. 
This  is  a  matter  both  of  principle  and  jiol- 
icy."  Starkie,  Ev.  ()4S.  This  seems  very 
plain, but  the  application  of  the  rule  is  not 
always  free  from  ditiiculty.  In  the  in- 
finite combination  of  circumstances,  eases 
arise  which  seem  exceptions,  but,  when 
clearly  examined,  are  found  not  to  fall 
within  the  princii)le.  As,  tor  exani|;le.  It 
may  happei.  that  the  written  instrument 
does  not  puiport  to  cover  the  whole  field 
of  contract,  and  is  not  intended  to  be  the 
"de()ository  "  of  the  whole  agreement,  but 
only  one  liranch  of  it.  In  such  case,  the 
whole  contract  may  be  proved  by  [)arol, 
without  tinichins  the  principle  ;  the  object 
being,  not  to  add  to  or  alter  the  written 
instrum(>nt,  but  to  show  the  whole  agree- 
ment, of  which  the  writing  is  only  a  part. 
Kaphan  v.  Ryan,  IG  S.  f.  ;!G().  is  an  exam- 
ple of  this  class,  where  the  court  were 
"not  called  on  to  give  ccmstrnction  to  the 
note  and  int)rtgage,  but  to  determine, 
from  tlie  evidence,  for  what  purpose  they 
(as  executed)  were  to  l)e  used, "etc.  Here, 
the  writing  covers  the  whole  field  ;  stating 
who  are  the  parties,  and  what  the  consid- 
eration and  the  iirice,  in  condensed  form, 
but  with  exhaustive  particularity.  Some- 
times the  "written  instrument"  does  not 
state  specifically  the  consideration;  as 
where  a  note  says,  generally,  "for  value 
received."  There  is  a  class  of  such  cases 
where  the  consideration  maybe  inquired 
into;  and  in  that  way  matter  may  get 
in  by  parid  "  which  does  not  necessarily 
lend  to  change  the  terms  of  the  note,  al- 
though, by  showing  the  true  considera- 
tion upon  which  it  was  given,  it  may  con- 
trol the  recovery  upon  the  note."  See  Mc- 
Grath  v.  liarnes,  i;!  S.  C.  :f:!2,  where  the 
court  reviewed  our  cases  upon  the  sul)ject, 
and  the  former  chief  justice.  Willaid.  en- 
deavored (o  reconcile  them  on  the  distinc- 
tion   here   indicated.     In  that   case  it  was 


held  that  "when  an  executor  gave  his 
])roiiiissory  note  for  the  jiaynient  (i 
money,  which  was  expressed  to  lie  tin' 
amount  due  by  his  testator's  estate  for 
medical  Kervice.s  rendered,  most  of  which 
during  last  illness,  parol  evideueeof  a  con- 
temporaneous agreement  that  the  note 
was  to  be  paid  only  upon  a  certain  cfindi- 
tion  (that  the  probate  judge  would  piiss 
the  account)  is  incompetent."  In  the  case 
before  us,  there  cannot  be  the  slightest 
doubt  that  the  consideration  was  as  stilt- 
ed in  the  instrument.  There  is  no  doubt 
that  a  mere  receipt,  although  in  writing, 
may  be  explained  by  parol;  lint  that  goes 
on  the  ground  that  a  receipt  does  not 
necessarily  import  a  c<)ntract.  As  was 
stated  in  the  case  of  Heath  v.  Steele,  !)  S. 
Ci  92 :  "  In  itself  a  receipt  does  not  express 
the  terms  of  any  contract  or  writing  of 
the  minds  of  the  Darties  between  whom  it 
Iiasses.  but  merely  evidences,  by  wa^'  of 
admission,  the  fact  stated  in  it."  See 
Moffatt    V.Hardin,   22S.  C.9;  1  Greenl.   S 

ao5. 

But,  assuming  that  this  case  does  not 
come  within  any  of  the  seeming  excep- 
tions above  indicated,  it  is  urged  that  the 
Iiaper  was  too  informal  and  ex  parte  to 
amount  to  a  contract,  but  inust  be  con- 
sidered as  a  "mere  memorandum  of  a  con- 
tract." and  therefore  not  such  "a  written 
instrument"  as  to  come  within  the  rule  as 
to  the  exclusion  of  parol  evidenee.  Most 
assuredly',  a  simple  bill  of  iiarcels  is  not 
a  contract,  for  the  very  good  reason  that 
it  lacks  theessential  element  of  agreement, 
lieing  only  the  statement  of  a  fact, — a 
menioranduiii ;  "a  note  to  help  the  mem- 
ory;" as, for  instance,  the  In  11  for  the  price 
of  the  corn  rendered  in  this  case  was  a 
mere  memorandum.  But  a  contract  is  a 
promise  from  one  to  another,  either  made 
in  fact,  or  created  by  the  law,  to  do,  or  to 
refrain  from  doing,  some  lawful  thing. 
Bish.  Cont.  §  1.  There  is  no  particular 
form  retinired;  the  only  requirement  being 
that  it  must  contain  the  contract  of  the 
parties,  and  be  definite  and  free  fi'om  am- 
biguity. We  can  well  understand  how.  in 
the  hurry  of  business,  parties  would  sub- 
stitute condensed  forms  for  regularly 
drawn  out  covenantsor  agreements.  The 
defendants  were  offering  corn  for  sale,  to 
come  by  a  vessel ;  the  plaintiffs  agreed  to 
purchase  a  lot,  and  the  defendants  com- 
mitted the  agreement  to  writing  thus: 
"May  17.  Sold  to  H.  Bulwinkk>  &  Co., 
«  •  ►  corn,"  etc.  "Schooner  shipiuent. 
payable  on  arrival.  [Signed]  Cramer  & 
lUohnie."  Why  was  that  not  a  complete 
contract?  It  is  said  the  plaintiffs  did  not 
sign  it.  The  whole  case  shows  that  it 
was  not  ex  parte,  but  expressed  the  con- 
tract of  both  parties.  We  think  it  is  not 
unusual,  in  a  certain  class  of  agreeiuents, 
to  be  signed  only  by  one  party;  as  in  the 
case  of  an  ordinary  note,  tlie  terras  of 
which  are  binding  upon  both  parties. 
Suppose  the  defendants  had  offered  the 
corn  for  sale  at  iiublic  auction,  and,  upon 
a  lot  being  nurcliased  by  the  plaintiffs  at 
a  certain  price,  the  defendants  had  made 
upnn  their  sale-book  the  seme  entry  pre- 
ciselyas  theyrnade  In  this  case.  "  Sold, etc., 
to  Bulwiukle  &  Co.,"  would    they  not   be 


BULWINKLE  v.  CRAMER 


113 


liahle  upon  It  ns  their  contract?  The  rc- 
hriircli  of  the  pliiintiffn'  attorney  enabled 
liim  to  fiirni.sh  the  court  with  references  to 
hcvcral  cuMBH,  vvhicli  Beein  to  conclude  thiH. 

In  Meyer  v.  Everth,  4  Camp.  22,  the  ac- 
licinwuB  on  a  contract  In  these  words' 
■•'id  ho^Bheads  of  Ilambro's  Bu^ar  loaves 
•  It  l.'joH.,  free  on  Ixiard  of  a  I'ritJHh  ship. 
Aiceptuiine  a t  70  days."  Lord  Ellenbor- 
iii];,'h  held  that  it  was  a  contract,  and  re- 
iijsud  to  adtnit  i)ai'ol  testimony  tending  to 
show  tnat,  when  the  Bujinr  was  pur- 
chased, a  sample  was  exhibited,  sayinK  : 
"When  the  sale  note  is  silent  as  to  the 
sample,  I  cannot  permit  it  to  be  incorpr)- 
rated  into  the  cimtract.  This  would 
aujount  to  an  admission  of  parol  evidence 
to  contradict  a  written  document,"  etc. 
In  Powell  V.  Eilmunds,  12  East,  10,  the  ac- 
tion was  on  a  sale  note  in  these  words: 
"April,  ]S(l(i.  I  a^ree  to  become  the  pur- 
chaser of  lot  the  first  (timber  trees)  at 
£700,  and  acree  to  fulfill  the  conditions  of 
Hale.  [Signed]  A.  Edmunds."  At  the 
trial  an  effort  was  made  to  show,  b^- 
parol  testimony,  a  warrant  as  toijuantity 
by  the  auctioneer,  but  the  evidence  was 
rejected;  the  court  snyinn:  "There  is  no 
doubt  that  the  parol  evidence  was  prop- 
erly rejected.  The  purchaser  ought  to 
have  had  it  reduced  into  writing  at  the 
time,  if  the  representation  then  made  as  to 
the  quantity  swayed  him  to  bid  for  the 
lot.  If  the  parol  testimfjny  were  admissi- 
ble in  tills  case,  I  know  of  no  instance 
where  a  party  may  not,  by  parol  testi- 
mony, sujieradd  any  term  to  a  written 
agreement,  which  would  be  setting  aside 
all  written  contracts,  and  rendering  them 
of  no  effect,"  etc.  In  Smith  v.  Jeffries,  l.i 
Mees.  &  W.  .OliO,  the  terms  were:  "I  here- 
by agree  to  sell  Mr.  Smith,  of  Tanner  Hill, 
Deptford,  si.xty  toii.s  of  Ware  potatoes,  at 
£5  per  ton,  and  for  whicli  lie  has  giveri  me 
a  hill  for  £2."iO  for  three  months,  and  is  to 
give  £.'iO  cash  on  Friilny  next.  [Signed] 
Samuel  Jeffries.  "  It  appeared  that  in  the 
neighbcrliood  tliree  qualities  of  potatoes 
were  linown  as  "Wares,"  and  the  effort 
was  to  show,  by  parol,  that  tlie  contract 
was  for  a  particularkind  of  Wares.  Held, 
"that  the  evidenceought  not  to  have  been 
received;  it  went  to  vary  and  limit  the 
contract  between  the  parties."  In  Greases 
V.  Asiilln,  :'.  Camp.  42(1,  the  words  were: 
"Sold  to  John  (ireases  50  quarters  of  oats, 
at  458.  fid.  per  quarter,  out  of  175  quarters. 
[Signed]  I.  Stevenson, for  I.  Ashlin."  The 
flefendant  attempted  to  prove  that  his 
agent  Stevenson  had  verbally  made  it  a 
condition  of  sale  that  the  plaintiff  should 
take  away  the  oats  imme<liately,  and  had 
abated  Gd.  per  (luarter  of  the  i)rice  orig- 
inally offered,  in  expectation  of  his  agreeing 
to  do  so.  Tlie  court  held  that  "it  was 
not  competent  co  the  dcfemlant  to  give 
such  evidence,  ns  it  materially  varied  the 
contract,  whidi  had  been  reduced  into 
writing."  In  each  of  the  two  last  cases 
cited,  tlie  paper  was  signed  only  by  one  of 
the  contracting  parties,  and  the  action 
was  lirought  by  the  partv  who  liad  not 
signed  it.  Sec,  also,  iMcClanagghnn  v. 
Hlnes,  2  Strob.  122,and  Gibson  v.  Watts, 1 
McCord,  Eq.  490. 

We  think  the  paper  proved  in  this  case, 

LAW  SALES— 8 


was  a  contract  in  writing  of  both  parties, 
witiiin  the  rule  as  to  the  exclusion  of 
parol  evidence. 

liut  it  is  insisted  that,  while  this  may  be 
so  as  to  what  may  be  called  the  terms  of 
the  paper,— the  quality  of  the  article,  con- 
sideration, time  of  payment,  ete., — yet 
|)arol  testimony  was  aiimissihle  tending 
to  sliow  that  the  defendants  Cramer  & 
Blohine,  in  selling  the  corn,  committing 
the  agreement  to  writing,  taking  the  note, 
and  realizing  upon  it  in  their  own  name, 
were  acting,  not  as  the  papers  represent- 
ed, but  as  agents  of  a  house  in  Baltimore, 
and  that  the  plaintiffs  contracted  with 
said  house,  through  Cramer  &  Blohme  aa 
tlieir  agents.  Is  not  the  signature  to  a 
contract  in  writing,  showing  who  made 
it,  and  in  what  ciiaracter,  a  part,  and  a 
very  important  part,  of  that  contract? 
We  are  unable  to  see  any  good  reason 
why  this  part  should  not  be  protected 
from  alteration  or  addition,  as  well  as 
an3-  other  part  of  the  contract  In  writing. 
It  seems  to  us  tliat,  when  the  delendimts 
signed  the  contract  in  their  own  names, 
that  became  a  part  of  it.  and  could  not  be 
altered  by  parol,  so  as  to  add  to  tlie  signa- 
ture, "as  agents  of  Koijert  Turner  &  Son, 
of  Baltimore."  "A  person  contracting  as 
agent  will  be  personally  liable,  whether 
he  is  known  to  be  an  agent  or  not,  in  all 
cases  where  he  makes  the  contract  in  his 
own  name.  •  *  •  If  an  agent  selling 
goods  as  bought  of  him,  (tlie  agent,)  he 
would  be  personally  liable  for  a  failure  to 
deliver  the  goods."  Storv,  Ag.  2G9.  See, 
also.  Id.  §  219;  Benj.  Sales,  §219;  Higginsv. 
.Senior,  S  Mees.  &  W.  834;  Nush  v.  Towne, 
5  Wall.  703;  and  Jones  v.  Littleilaie,  6 
Adol.  &  E.  48(j,  in  which  last  case  cited 
Lord  Chief  Justice  Dennian  said:  "There 
is  no  dr>ubt  that  evidence  is  admissible, 
on  behalf  of  oneof  thecontrncting  parties, 
to  show  tliat  the  other  was  agent  only, 
tliough  contracting  in  liis  own  name,  and 
so  fix  the  real  principal;  but  it  is  clear 
that,  if  the  agent  contracts  in  such  a  form 
as  to  make  himself  personally  responsible, 
he  cannot  afterwards,  whether  his  prin- 
cipal were  or  were  not  known  at  the  time 
of  the  contract,  relieve  himself  from  that 
responsibility.  In  this  case  there  is  no 
contract  signed  by  the  sellers,  so  as  to 
satisfy  the  statute  of  frauds,  until  the  in- 
voice, l)y  which  the  defendants  represent 
themselves  to  be  the  sellers;  and  we  think 
they  are  conclusively  bound  t)y  that  rep- 
resentation. Their  oliject  in  so  represent- 
ing was,  as  appeared  by  the  evidence  of 
custom,  to  secure  the  passing  of  the  money 
through  tlieir  hands,  and  to  prevent  its 
being  paid  to  their  [irincipals;  but  in  so 
doing  they  have  made  themselves  re- 
sponsible," etc. 

In  the  case  from  Wallace,  Mr.  Justice 
Clifford  said:  "Parol  evidence  can  never 
be  admitted  for  the  purpose  of  exonerat- 
ing an  agent  who  has  entered  Into  a  writ- 
ten contract  in  wliicli  he  appears  as  prin- 
cipal, even  though  he  shouhl  propose  to 
sliow,  if  allowed,  that  he  disclosed  his 
agency,  and  mentioned  the  name  of  his 
principal,  at  the  time  tlie  contract  was  ex- 
ecuted. Where  a  simple  contract  otlier 
than  a   bill   or  note  is  made  by  an  agent. 


114 


BULWINKLE  v.  CRAMER. 


the  principal  whom  he  represents  may  in 
general  maintain  an  action  upon  it  in  his 
own  name,  and  parol  evidence  is  admissi- 
ble, although  the  contract  is  in  writing, 
to  sliow  tliat  the  pei'son  named  in  tlie  con- 
tract was  an  agent,  and  that  lie  was  act- 
ing for  Ills  principal.  'Such  evidence,' says 
Baron  Parke,  'does  not  deny  that  the 
crintract  binds  those  whom  on  its  face  it 
purports  to  bind,  but  shows  that  it  also 


binds  another;'  and  that  principle  has 
been  fully  adopted  by  this  court, "—citing 
numerous  authorities. 

The  judgment  of  this  court  is  that  the 
judgment  of  the  circuit  court  be  reversed, 
and  the  cause  remanded  to  the  circuit 
court  for  a  new  trial. 

SIMPSON,  U.  J.,  and  McIVER.  J.,  con- 
cur. 


I 


BUNN  V.  MARKIIAM. 


117 


BUNN  et  al.  y.  MARKIIAM  et  al. 

1 7  Taunt.   224.) 

Court   of   Common    Pleas,    Michaelmas    Term, 
181G. 

This  was  an  action  of  trover,  lirouulit 
to  recover  from  tlie  (lefen<lantK.  who  were 
the  executorH  of  Sir  Jervane  Clifton,  Hart. 
UecenHed,  certain  Inrlia  IjondH,  hanl<  nt)tps, 
guineas,  an  iron  chest,  and  the  Ijoxbh  and 
envelopes  in  which  tlicse  securities  and 
money  liad  been  contained.  The  canne 
was  tried  at  (Juildliallat  the  HittinKS  after 
Trinity  term,  ISKi,  l)efore  Gibhs  C.  .1.  The 
evidence  was,  that  Sir  Jervase  Clifton, 
beinK  of  an  advanced  age,  and  conlined  to 
his  bed,  and  having  l)y  liis  will,  dated  in 
]S14,  beqneatlied  all  his  cash,  notes,  and 
India  bonds  to  his  e.\ecutors,  to  be  sold 
and  invested  in  trust  for  his  daughter, 
the  wife  of  the  defendant  Markbaiu,  and 
lier  children,  on  iMth  March,  thinking; 
himself  near  his  end.  sent  for  his  solicitor, 
the  defendant  Jamson,  to  make  a  codicil 
to  his  will,  whose  partner  Let-son  attended 
him,  and  prepared  a  codicil,  by  which  the 
testator  gave  the  plaintiff,  Mary  Bnnn, 
otherwise  Clifton,  (who  had  for  more 
than  thirty  years  eohabite<l  with  him, 
and  was  the  mother  of  the  other  plain- 
tiff,) ClMioo,  and  to  his  and  her  dauKhter, 
the  plaintiff  Rebecca  Clifton,  the  like  sum 
of  £2000.  While  the  solicitor  was  in  the 
house,  the  testator  thking  some  keys  from 
a  basket  which  he  always  kept  by  his  bed- 
side, delivered  them  to  .lohn  Runn  Clifton, 
(his  son  by  the  one,  and  the  brotlierof  the 
other  plaintiff,)  Leesou,  and  a  tenant 
named  Sandby,  in  whom  he  reposed  jrreat 
confidence,  and  directed  them  to  ffo  to  an 
iron  chest  in  which  he  kept  his  valuables, 
(ixed  in  the  wall  of  another  room  in  his 
house,  and  to  brin^  from  it  whatever 
property  they  found  there.  They  brou«lit 
three  parcels,  and  laid  them  on  his  bed, 
one  of  which  contained  three  India  bonds, 
value  £1500,  and  bank  notes  tojiether  of 
the  value  of  £2225,  another  contained 
£1100  in  bank  notes,  and  the  other  con- 
tained 47'.t  (guineas,  tlie  value  of  the  whole 
being  £;!S2!).  The  testator,  on  beinff  in- 
formed that  the  amount  was  about  CITO 
short  of  £4000,  said  it  should  be  made  up 
to  £fOOO  even  money,  and  directed  for  the 
plaintiffs,  £2000  for  each  ;  but  the  comple- 
ment was  never  in  fact  added.  On  the 
box  which  contained  the  £2225  .Mr.  Runn 
Clifton  had  before,  on  the  7th  of  March,  by 
the  testator'sdirection,  written  "For  Mrs. 
and  Miss  Clifton  £.")04."  The  other  two 
parcels,  Mr.  Runn  Clifton,  by  his  father's 
direction,  on  the  present  occasion  sealed  up 
and  wrote  on  them  the  words,  "  For  .Mrs. 
and  Miss  (;iifton.  '  The  testator  charged 
Mr.  Clifton,  that  after  his  decease  he 
should  deliver  these  to  his  mother  and 
sister,  the  plaintiffs.  Mr.  Clifton,  by  his 
father's  direction,  replaced  this  property 
in  the  iron  chest,  locked  it,  and  brought 
back  the  keys,  which  Leeson,  by  the  tes- 
tator's direction,  sealed  up  in  a  paper 
parcel,  and  wrote  thereon,  "To  be  deliv- 
ered to  Mr.  Jamson  after  Sir  Jervase 
Clifton's  decease."  The  keys  were  then 
again   put   into   the   basket"  by  the  testa- 


tor's bed-si<le.  The  plaintiffs  were  not 
then  in  the  house,  but  upon  .Mrs.  Clifton's 
arrival  some  days  after,  the  testator  in- 
trusted to  her  the  keys  of  the  iron  chest, 
and  told  her  that  the  contents  were  to  be 
her's  and  her  daughter's,  and  charged  her 
to  keep  the  keys;  and  many  times  after- 
wards, particularly  on  27th  .\prll,  on  th«j 
occasion  of  his  making  a  further  codicil, 
he  declared,  that  the  money  in  the  iron 
chest  was  f<ir  the  plaintiffs.  After  this 
time,  the  testator  frequently  e.xpressed 
anxiety  respecting  the  keys  'of  the  iron 
chest,  and  required  them  to  be  shown  him, 
and  on  learning  that  they  had  been  ob- 
tained  from  .Mr.s.  Clifton  by  his  eldest  son, 
he  expressed  great  displeasure,  and 
caused  the  keys  to  be  replaced  in  the  bas- 
ket of  keys  which  was  always  kept  in  his 
bed-room.  The  parcels,  and  the  i)roperty 
therein,  continued  in  the  same  state  until 
after  the  testator's  decease,  which  hap- 
pened a  year  afterwards.  Gibl)s  C.  J.  left 
to  the  consideration  of  the  jury  the  prob- 
ability that  the  intended  £4000  of  which 
the  testator  had  spoken,  was  the  same 
sum  designated  by  the  codicil  of  21tli 
March;  and  also  the  question,  whether  the 
testator  meant  to  make  this  an  absolute 
gift  to  the  i)laintiffs,  or  only  provisional, 
upon  the  probability  that  he  might  not 
survive  long  enough  to  com|)lete  the  cod- 
icil. The  jury  found  that  this  was  not  the 
£4000  designated  by  the  codicil,  and  that 
tlie  testator  intended  it  as  an  absolute 
and  not  a  provisional  gift.  His  lordship 
reserved  tlie  point,  whether  there  had 
been  in  this  instance  such  a  sudicient  de- 
livery of  the  property,  as  was  necessary 
to  constitute  a  donatio  mortis  causa. 

Best  and  Rlosset  Herjts.  showed  cause. 
Shefiherd,  Solicitor-General,  and  Coi)ley 
Serjt.,  who  were  to  have  sufjported  the 
rule,  were  relieved  by  the  court. 

GIBRS  C.  J  The  two  grounds  on  which 
the  present  application  is  made,  have  a 
different  object  in  view.  Tlie  one  is,  that 
the  jury  did  not  draw  a  correct  conclu- 
sion from  the  facts  submitted  to  them: 
the  other  is.  to  enter  a  nonsuit,  on  the 
ground  that  the  facts,  taking  them  to  be 
proved,  do  not  make  out  the  title  of  the 
plaintiffs.  The  lirst  question  stands  prin- 
cipally on  the  evidence  of  Mr.  Runn  Clif- 
ton. If  his  memory  has  not  failed  him. 
the  venlict  is  certainly  right,  and  his 
credit  and  character  stand  unimpeached. 
1  say  this,  in  justice  to  a  young  man 
whose  character  is  his  best  possession. 
As  to  the  other  points,  it  is  agreed  on 
all  hands,  that  a  <lonMtio  mortis  causa 
cannot  exist,  without  a  delivery.  The 
facts  of  this  case  are.  tliat  the  property 
was  taken  out  of  a  chest  of  the  testator, 
looked  over  liy  him. and  sealed  up  in  three 
different  parcels:  being  so  sealed,  he  de- 
clares that  it  is  Intended  for  the  witness's 
mother  and  sister,  and  directs  that  It 
shall  be  given  to  them  after  his  decease; 
there  is  no  other  delivery  but  that:  it  is 
replaced  in  the  chest,  and  the  keys  are  re- 
delivered to  the  testator,  or  liy  hira  to 
Iiersons  whom  he  always  nominates  as  his 
servants   for  that  effect,  and   he  expresses 


118 


BUKN  B.  MARKHAM. 


a  contiDual  anxiety  about  the  custody  of 
the  keys.  The  question  is,  wliether  tliis 
be  a  sufiiciont  delivery  to  make  a  dona- 
tio mortis  caunn  ;  and  we  are  clear  that 
it  is  not.  It  is  argued  by  the  counsel  for 
the  plaintiffs,  that  there  needs  not  to  l)e  a 
continuing  possession  in  the  donee:  but 
that  the  donor  may  resume  the  posses- 
sion without  determining  the  gift.  There 
is  no  case  which  decides  that  tlie  donor 
may  resume  the  possession,  and  tlie  dona- 
tio continue.  Smith  v.  Smitli,  2Str. 9.5:"),  is 
a  very  confused  case.  Where  the  master 
died,  it  does  not  apjiear:  inasmuch  as  it 
is  stated  that  the  master  delivered  tlie 
keys  of  his  rooms  to  his  servants  when 
he  went  out  of  town,  probably  he  died  in 
the  country,  and  tlien  the  delivery  of  the 
keys  last  made  to  his  servant,  would  lie 
a  continuing  of  possession  up  to  liis  de- 
cease. But  all  the  cases  agree,  that  if  the 
donor  resumes  the  possession,  it  ends  the 
sift.  Lord  Hardwicke  expressly  so  holds 
in  Ward  v.  Turner,  where  it  suited  the 
purpose  of  the  counsel  to  argue,  2  Vez.  Sr. 
433,  that  if  the  donor,  after  making  a  com- 
plete delivery,  receives  back  the  article, 
the  donation  remains  perfect.  Lord 
Hardwicke  immediately  denied  that  prop- 
osition, and  held,  that  if  the  possession 
of  the  donee  do  not  continue,  the  gift  is  at 
an  end.  Seeing,  therefore,  that  it  is  in 
the  power  of  the  donor  at  any  time  to 
revoke  the  donation  before  liis  death,  and 
that  there  must  be  a  continuing  possession 
of  the  donee  after  the  deli  very  to  tlie  time  of 
the  donor's  death:  seeing  too,  liere,  that 
there  is  neither  a  delivery,  nor  a  continu- 
ing possession,  we  are  of  opinion  that  no 
interest  in  this  property  iiassed  to  Mrs. 
and  Miss  Clifton  under  the  supposed  de- 
livery to  the  son  for  the  use  of  liis  mother 
and  sister;  and  that  therefore  a  nonsuit 
must  be  entered. 


DALLAS  J.  I  am  of  the  same  opinion. 
The  facts  of  tlie  case  denote  an  intention 
only:  there  is  an  indorsement  of  the 
names  of  the  mother  and  daughter  on  tlie 
paper;  but  they  denote  the  testator's  in- 
tention only.  The  property  is  disposed 
in  a  chest  belonging  to  the  testator;  he 
retains  tlie  key  ;  lie  docs  not  even  deliver  it 
to  the  persons  for  whom  tlie  contents  were 
intended.  If  he  had  chosen  to  take  out 
the  bank-notes  tlie  next  day,  and  dispo.se 
of  them  to  another,  it  was  competent  for 
him  so  to  do.  The  donor,  therefore,  never 
divested  biniseli  of  the  possession  for  a 
moment,  and  therefore  this  is  not  a  dona- 
tio mortis  causa. 

PARK  J.  concurred.  Both  by  the  civil 
and  by  the  English  law.  In  this  kind  of 
donatio  there  must  be  an  act  of  delivery. 
Even  in  that  strongest  case  of  Smith  v. 
Smith,  Lord  Hardwicke  C.  .J.  held  that 
there  must  be  an  act  of  delivery,  to  con- 
stitute a  gift:  here  is  not  only  no  evi- 
dence of  a  delivery,  but  the  evidence  is 
against  a  delivery;  for  the  testator  states 
that  it  was  to  be  delivered  at  a  future 
time;  in  addition  to  this,  tlie  donor  gets 
the  keys,  and  is  offended  if  any  otlier  gets 
the  keys:  neither  is  there  a  continuing 
possession,  wliich  is  necessary. 

BUnilDUGHJ.  The  son  had  no  au- 
thority whatever  to  deliver  over  these  ar- 
ticles into  the  hands  of  his  mother,  and  if 
he  had  no  such  authority,  it  was  not  a 
donatio  mortis  causa.  In  Burn's  Ecclesi- 
astical Law,  all  the  cases  are  collected: 
they  all  indicate,  that  there  must  be  a  de- 
livery either  to  the  donee  himself,  or  to 
some  one  else  for  the  donee's  use:  here  is 
no  such  delivery,  and  therefore  a  nonsuit 
must  be  entered. 

Rule  absolute. 


BUTLER  V.  BUTLER. 


121 


BUTLER  V.  BUTLEU. 

(77  N.  Y.  472.) 

Court  of  Appeals  of  New  York.    June  3,  1S79. 

Appeal  from  a  judgment,  general  tei-iii, 
third  department,  allirmin);  a  judKiiient 
in  plaintiff's  favor  enterud  upon  tlie  re- 
port of  a  referee. 

George  W.  Miller, for  appellant.  Samuel 
Hand,  for  reKpondent. 

DANFOKTH,  J.  The  plaintiff  submitted 
a  propohition  in  writing  to  the  defendant, 
and  it  was  in  like  manner  accepted.  By 
It  (lie  plaintiff  said:  "1  propose  to  fur- 
nish yon,  for  your  hotel  in  Luzerne,  N.  Y., 
one  of  Butler's  (ias  Generators  end  Hold- 
ers. •  •  •  Tlie  holder  to  beof  suthcient 
capacity  to  contain  fifteen  hundred  cubic 
feet  of  gas.  To  furnish  all  pijjcs  to  con- 
nect the  generator  with  the  holder,  and 
the  holder  with  the  main  |)ipe  leading  to 
the  hotel ;  all  weights  and  chains,  sheaves 
and  pulleys  to  sujjport  and  balance  the 
holder.  All  labor  for  putting  up  and  set- 
ting the  retorts,  and  banging  the  holder, 
an<l  connecting  the  pipes  as  before  men- 
tioned, and  a  sufficient  air-mixing  meter, 
for  the  sum  of  $1,500.  You  (the  defendant) 
are  to  furnish  the  tank  and  bouse  for 
holder  and  generator,  and  gallows  frame 
for  support  of  holder,  to  pay  the  freight 
f»n  the  machine  from  New  York,  and 
board  one  mechanic  while  putting  up  and 
connecting  as  above,  exclusive  of  the  cost 
of  the  machine,  and  furnish  one  man  to 
help  rivet  the  gas-meter.  I  guarantee 
•  *  •  that  the  machine  shall  be  put  up 
in  the  best  and  most  workmanlike  manner 
and  all  ready  to  make  gas  by  June  7,  if 
your  part  of  the  work  does  not  delay  us. 
Payments  to  be  $500  cash  when  the  works 
are  on  that  ground,  $.")00  in  one  bond, 
due  September  25,  1H72,  and  $5(10  in  one 
bond,  due  September  25,  lS7i!,  with  Inter- 
est. " 

The  plaintiff  in  his  complaint  alleges 
that  he  "delivered  the  gas-works  to  the 
defendant  at  Luzerne  in  accordance  with 
the  contract ; "  avers  a  constant  readiness 
on  his  part  "  to  set  the  same  up  and  make 
the  connectiona  in  accordance  with  the 
agreement,"  but  says,  "the  defendant  has 
never  i)ermitted  him  to  do  so,"  and  for 
breach,  that  the  defendant,  "e.xcept  to 
pay  freight  charges  on  said  gas-works, 
has  wholly  failed  to  perform  the  agree- 
ment on  his  part  ,  and  has  not  paid  the 
sum  of  fl,500,  and  for  that  sum,  with  in- 
terest, he  demands  judgment." 

Upon  the  trial  the  referee  found  la  ac- 
cordance with  the  complaint,  and  among 
other  tilings,  "that  the  plaintiff  delivered 
the  gas-works  to  the  defendant  at  Lu- 
zerne; that  the  extra  e.sponse  which  the 
plaintiff  would  have  incurred  to  set  the 
same  up  and  make  the  connections  is 
$100;"  and  deducting  that  from  the  eon- 
tract-price  finds  that  the  plaintiff  is  enti- 
tled to  recover  the  balance,  and  directs 
judgment  therefor  with  interest  from  the 
Ist  of  July,  1.S71.  The  defendant  "Xcepted 
to  these  tiiidings,  and  the  exceptions.  I 
think,  are  well  taken.  Thecoii  tract  is  sin- 
gle and  entire.    If  performed  by  the  plain- 


tiff he  would  be  entitled  to  recover  the  full 
sum  of  $1,.500,  part  in  cash,  part  In  bonds. 
He  was  not  to  furnish  niaterluls  and  per- 
form labor  upon  them  for  the  defendant, 
but  from  his  own  materials  and  ljy  his 
own  labor  furnish  to  tlie  defendant,  prop- 
erly aflixed  to  his  premiHcs,  a  completed 
machine  of  a  particular  kind,  "all  ready 
to  make  gas." 

It  is  not  pretended  that  this  hoR  been 
done;  on  the  contrary,  the  defendant  has 
not  permitted  him  to  do  it— and  as  the 
coiilriict-price  is  not  divisible,  there  Is  no 
ground  on  whicli  a  recovery  can  be  had  for 
any  part  of  it.  Inchbald  v.  Westei-a,  etc., 
17  C.  B.  (S.  S.)  7:i;i;  Planche  v.  (.■olliurn.  S 
Bing.  l-I.  Nor  is  it  in  aiij-  sense  true  that 
the  gas-works  have  been  delivered  to  the 
defendant.  (,'ertain  materials,  among 
others  sheet  and  other  kinds  of  iron,  in 
iiuiidles  and  rolls,  castings,  grates,  rings, 
retort  covers, and  "one  machine  bottom," 
which,  when  properly  arranged  and  joined 
together,  may  compose  a  machine,  were 
delivered  by  the  plaintiff  to  a  common 
carrier,  who  received  them  at  '  owner's 
risk."  Tl'.ey  were  marked  B.  C.  B.,  or  B. 
C.  B.  for  B  C.  Butler,  Luzerne,  N.  Y.,  and 
the  defendant  paid  the  freight  uiion  them. 
Even  these  things  did  not  thereby  become 
his  property;  the  freight  was  paid  in  ex- 
ecution of  the  contract,  but  the  goods  re- 
mained the  goods  of  the  jilaintiff.  If  lost 
during  trans|)ortatlon,  or  if  destroyed 
after  reacliiug  the  place  of  destination,  the 
plaintiff  would  have  to  hear  the  loss.  He 
could  change  their  destination,  and  ninke 
such  use  of  them  as  he  saw  tit.  His  cred- 
itors could  take  them  in  execution  (.At- 
kinson V.  Bell,  S  B.  &  C.  277),  for  the  de- 
fendant was  to  have,  not  these  articles, as 
separate  parts  or  members  from  which 
by  the  application  of  skill  and  labor  a 
machine  couhl  be  constructed,  but  a  com- 
plete thing,  placed  u|)on  his  own  prem- 
ises, of  the  re(|Uired  capacity  and  ready  for 
use;  and  until  that  was  furnished  the 
property  in  the«e  chattels  did  not  pass 
from  the  plaintiff,  .\tkinson  v.  Hell.  S  H. 
&  C.  277;  Johnson  v.  Hunt,  11  Wend.  1:!7; 
Tripp  V.  Armitage.  4  M.  &  W.  GltS;  .An- 
drew V.  Dieterich,  14  Wend.  ;15;  Andrews 
v.  Durant,  11  N.  Y.  35;  02  Am.  Dec.  ,55; 
Ward  V.  Shaw,  7  Wend.  404;  Decker  v. 
Furniss.  14  N.  Y.  fill;  Clark  v.  Bulmer,  11 
M.  &W.243.  Doubtless  the  plaintiff  may 
in  tills,  as  in  other  cases  where  the  per- 
formanceof  a  contract  has  been  prevented 
by  the  act  or  omission  of  the  other  party, 
recover  what  lie  has  lost  thereby.  If  any 
thing,  or  the  damages  sustuined.  if  any. 
llosnier  v.  Wilson.  7  Mich.  2i)4;  74  Am. 
Dec.  71().  Such  a  case  however  was  not 
presented  to  the  referee,  nor  was  it  sug- 
gested by  the  pleadings.  The  plalntlft 
neither  claimed  nor  proved  damages  aria- 
iiig  from  the  breach  of  the  contract,  nor 
from  being  prevented  from  performing  It. 
On  the  contrary  the  cause  of  action  was 
treated  by  the  plaintiff  and  referee  and  by 
the  court  below  as  one  where  property 
bargained  for  had  been  delivered  and  title 
Vested  in  the  purchaser,  and  for  which 
therefore  the  pluiutlff,  within  wcU-sel tle<l 
rules  of  law.  might  maintain  the  action 
and  recover  the  purchase-price.    .And  such 


122 


BUTLER  V.  BUTLER. 


is  the  contention  of  the  learned  counsel 
for  the  respondent  upon  this  appeal. 
There  is  however  nothin/r  in  the  evidence 
to  warrant  that  view  of  the  case,  or  per- 
mit the  application  of  such  rule  of  law. 


The  judgment  should  be  reversed  and  a 
new  trial  granted,  with  costs  to  abide  the 
event. 

All  concur. 

.ludgraent  reversed. 


BUTLI-:U  V.  THOMSON. 


125 


BUTUOK  T.  THOMSON  et  al. 

(92  U.  S.  412.) 

Supreme  Court  of  the  United  States.    Oct. 
Term,  1875. 

Krror  to  the  circuit  court  of  the  TTnltcd 
States  for  tlic  soutlu-rn  district  of  New 
Yorli. 

Mr.  William  M.  Evarts  for  the  plaintiff 
in  error.    Mr.  E.  U.  Owen,  contra. 

Mr.  Justice  HUNT  (ielivered  the  opinion 
of  the  court. 

The  plaintiff  alleged  that  on  theolcvrnth 
day  of  July,  ISCT,  he  barnained  and  Hold 
to  the  defendantH  a  quantity  of  iron 
thereafter  to  arrive,  at  prices  named,  and 
that  the  defendants  agreed  to  accept  the 
same,  and  pay  the  purchase-money  there- 
for; that  the  iron  arriveil  in  due  time,  and 
was  tendered  to  the  defendants,  who  re- 
fused to  receive  and  pay  for  tlie  same; 
and  that  the  pUintiff  afterwards  sold  the 
same  at  a  loss  of  .f'j..")hil,  which  sum  he  re- 
quires the  defendants  to  make  j;ood  to 
him.  The  defendants  interposed  a  general 
denial. 

Upon  the  trial,  the  case  came  down  to 
this:  The  plaintiff  emi)l<)yed  certain 
brokers  of  the  city  of  New  York  to  make 
sale  for  him  of  the  expected  iron.  The 
brokers  made  sale  of  the  same  to  the  de- 
fendants at  12%  cents  per  pound  in  gold, 
cash. 

The  following  memorandum  of  sale  was 
made  l)y  the  brokers;  viz. : — 

"New  York.  July  10,  1807.  Sold  for 
Messrs.  Butler  &  Co.,  Boston,  to  Messr.s. 
A.  A.  Thomson  &  Co.,  New  York,  seven 
hundred  and  five  (7'J5)  packs  first-quality 
Russia  sheet-iron,  to  arrive  at  New  York, 
at  twelve  and  three-quarters  {\'2%)  cents 
per  i)ound,  gold,  cash,  actual  tare.  Iron 
duo  ai)ont  Sept.  1,  '67.  White  &  Ilazzard, 
Ilrokers." 

The  defendants  contend,  that,  under  the 
statute  of  frauds  of  the  state  of  New 
York,  this  contract  is  not  obligatory  up- 
on them.  The  judge  before  whom  the 
cause  was  tried  at  the  circuit  concurred  in 
this  view,  and  ordered  judgment  for  the 
defendants.  It  is  from  this  judgment  that 
the  present  review  is  taken. 

The  provision  of  the  statute  of  New 
York  upon  which  the  question  arises  (2  K. 
S.  p.  186,  sect.   :i)  is  in  these  words: — 

"Every  contract  for  the  sale  of  any 
goods,  chattels,  or  things  in  action,  for 
the  price  of  fifty  dollars  or  more,  shall  be 
void,  unless  (l)a  note  or  meniorandum 
of  such  contract  be  made  in  writing,  and 
lie  sui)scrilied  by  the  parties  to  be  charged 
thereby  ;  or  (2)  unless  the  buyer  shall  ac- 
cept and  receive  part  of  such  goods,  or 
the  evidences,  or  some  of  them,  of  such 
things  in  action;  or  (Ij)  unless  the  bn.ver 
sliall  at  the  time  pay  some  part  of  the 
purchase-money." 

The  eighth  section  of  the  same  title  pro- 
vides that  "every  instrument  required 
by  any  of  the  provisions  of  this  title  to 
be  subscribed  l)y  any  party  may  be  sub- 
scribed bythelawful  agent  of  such  party." 

There   is    no  pretense  that  any  of  the 


goods  were  accepted  and  received,  or  that 
any  part  of  the  purchaHe-nioney  was  paid. 
The  (luestlon  arises  upon  the  first  branch 
of  the  statute,  that  a  memorandum  of  the 
contract  shall  be  made  In  writing,  and  be 
subscribed  by  the  parties  to  be  charged 
thereby. 

The  defendants  ilo  not  contend  that 
there  Is  not  a  sulllclent  subscription  to 
tlie  contract.  White  &  Uazzard,  who 
signed  the  instrument,  are  proverl  to  have 
been  the  authorized  agents  of  the  plain- 
tiff to  sell,  and  of  the  defendants  to  buy  ; 
and  their  signature.  It  Is  conceded,  is  the 
signature  lioth  of  the  defendants  and  of 
the  plaintiff. 

The  objection  is  to  the  sufficiency  of  the 
contract  itself.  The  written  memoran- 
dum recites  that  Butler  &  Co.  had  sold  tlie 
iron  to  the  delendants  at  a  prlro  named; 
but  It  Is  said  there  Is  no  recital  that  the 
defendants  had  bought  the  iron.  There 
is  a  contract  of  sale.  It  is  argued,  but  not 
a  contract  of  (lurchase. 

As  we  understand  the  argument, It  is  an 
attack  upon  the  contract,  not  only  that 
it  is  not  in  compliance  with  the  statute  of 
frauds,  but  that  it  is  void  upon  common- 
law  princli)lcs.  The  evidence  required  by 
the  statute  to  avoid  frauds  and  perjuries 
— to  wit,  a  written  agreement — is  iiresent. 
Such  as  it  is,  the  contract  is  snillclently 
established,  and  possesses  the  evidence  of 
Its  e:(lbtence  required  Ity  the  statute  of 
frauds. 

The  contention  would  be  the  same  if  the 
articles  sold  had  not  been  of  the  price 
named  in  the  statute;  to  wit,  the  sum  of 
fifty  dollars. 

Let  us  examine  the  argiynent.  Black- 
stone's  definition  of  a  sale  Is  "a  transmu- 
tation of  property  from  one  man  to  another 
in  consideration  of  some  price."  2  HI.  44C. 
Kent's  is,  "a  contract  for  the  transfer  of 
property  from  one  person  to  atiotlier." 
2  Ivont,  (!1."..  Bigelow,  C.  J.,  defines  it  in 
these  words:  "Competent  p.nrtics  to  en- 
ter into  a  contract,  an  agreement  to  sell, 
the  mutual  assent  of  the  parties  to  the 
subject-matter  of  the  sale,  and  the  price  to 
be  paid  therefor."  Gardner  v.  Latie,  12 
Allen,  3!),  4:).  A  learned  author  says,  "If 
any  one  of  the  Ingredients  be  wanting, 
there  Is  no  sale."  .\tkiuson  on  Sales,  5. 
Benjamin  on  Sales,  p.  1,  note,  and  p.  2, 
says,  "To  constitute  a  valid  sale,  tliere 
must  be  (1)  parties  competent  to  con- 
tract; (2)  mutual  assent;  (3)  a  thing,  the 
absolute  or  general  proi)erty  in  which  Is 
transferred  from  the  seller  to  the  buyer; 
(4)  a  price  in  money,  paid  or  promised." 

How.  then,  can  there  be  a  sale  of  seven 
hundred  and  five  packs  of  iron,  uidess 
there  be  a  purchase  of  it?  How  can  there 
be  a  seller,  unless  there  lie  likewise  a  pur- 
chaser. These  authorities  recpdre  the  ex- 
istence of  both.  The  essential  Idea  of  a 
sale  is  that  of  an  agreement  or  meeting  of 
minds  bv  which  a  title  passes  from  one, 
and  vests  in  another.  \  man  cannot  sell 
his  chattel  by  a  iierfccted  sale,  and  still 
remain  its  owner.  There  may  be  an  offer 
to  sell,  subject  to  acceptance,  which  would 
bind  the  partv  offering,  ami  not  the  other 
partv  until  acceptance.  The  same  may 
be  said  of  an  optional  purchase  upim  a 
BUlliclcnt  consideration.    Tliere  Is  also  a 


126 


BUTLER  V.  THOMSON". 


class  of  cases  under  tlio  statute  of  frauds 
where  it  is  Iielfl  that  tlie  party  who  has 
Binned  the  contract  may  be  held  charge 
aide  upon  it,  and  the  other  party,  who 
lias  not  furnished  that  evidence  against 
himself,  will  not  be  thus  cliarKcable.  Uni- 
lateral contracts  have  been  the  subject  of 
much  discussion,  which  we  do  not  propose 
here  to  repeat.  In  Thornton  v.  Kemp- 
ster,  5  Taunt.  7S8,  it  is  said, — 

"("oiitraets  may  exist,  which,  by  reason 
of  the  statute  of  frauds,  could  be  enforced 
by  one  party,  although  they  could  not  be 
enforced  by  the  other  party.  The  statute 
of  frauds  in  that  respect  throws  a  diffi- 
culty in  the  way  of  the  evidence.  Tlie  ob- 
jection does  not  interfere  with  the  sub- 
stance of  the  contract,  and  it  is  the  negli- 
gence of  the  other  party  that  he  did  not 
take  care  to  obtain  and  preserve  admissi- 
ble evidence  to  enable  himself  also  to  en- 
force it." 

The  statute  of  29  Car.  11.,  c.  3,  on  which 
this  decision  is  based,  that  "no  contract 
for  the  sale  of  goods,  wares,  and  mer- 
chandise, for  the  price  of  £10  sterling  or 
upwards,  shall  be  allowed  to  be  good  ex- 
cept the  buyer,"  &c.,  is  in  legal  effect  the 
same  as  that  of  the  statute  of  New  York 
already  cited.  See  Justice  v.  Lang,  42  N. 
v.  4y3,that  such  is  the  effect  of  the  statute 
of  J^ew  York. 

The  case  before  us  does  not  fall  witlin 
this  class.  There  the  contract  is  signed  by 
one  party  only  ;  here  both  have  signed  the 
paper;  and,  if  a  contract  is  created,  it  is  a 
mutual  one.     Both  are   liable,  or  neither. 

Under  these  authorities,  it  seems  clear 
that  there  can  be  no  sale  unless  there  is  a 
purchase,  as  there  can  be  no  purchase  un- 
less there  be  a  sale.  When,  therefore,  the 
parties  mutually  certify  and  declare  in 
writing  that  Butler  &  Co.  have  sold  a  cer- 
tain amount  of  iron  to  Thomson  &  Co.  at 
a  price  named,  there  is  included  therein  a 
certificate  and  declaration  that  Thomson 
&  Oo.  have  bought  the  iron  at    that  price. 

In  Newell  v.  Badford,  L.  R.  3  C.  P.  52, 
the  memorandum  was  in  these  words: 
"  Mr.  H.,  32  sacks  culasses  at  3ys.,  2S()  lbs., 
to  wait  orders;"  signed,"  John  Williams." 
It  was  objected  that  it  was  impossible  to 
tell  from  this  memorandum  which  party 
was  the  buyer,  and  which  was  the  seller. 
Parol  proof  of  the  situation  of  the  parties 
was  received,  and  that  Williams  was  the 
defendant's  agent,  and  made  the  entry  in 
the  plaintiff's  books.  In  answer  to  the 
objection  the  court  say,  "The  plaintiff 
was  a  baker,  who  would  require  the  flour, 
and  the  defendant  a  person  who  was  in 
the  habit  of  selling  it;"  and  the  plaintiff 
recovered.  It  may  be  noticed,  also,  that 
the  memorandum  in  tliat  case  was  so 
formal  as  to  contain  no  words  either  of 
purchaseor  8ale("  Mr.  H.,32  sacks  culasses 
at  39s.,  2SIJ  lbs.,  to  wait  orders");  but  it 


was  held  to  create  a  good  contract  upon 
the  parol  evidence  mentioned. 

The  subject  of  bought  and  sold  notes  was 
elaborately  discussed  in  the  case  of  JSivew- 
right  V.  Archibald,  6  Eng.  L.  &  Eq.  286; 
s.  c.  17  Q.  B.  103;  Benj.  on  Sales,  p.  224. 
sect.  290.  There  was  a  discrepancy  in  that 
case  between  the  bought  and  sold  notes. 
The  sold  note  was  for  a  sale  to  the  defend- 
ant of  ".500  tons  Messrs.  Uunlop,  Wilson, 
&  Co. 's  pig-iron."  The  bought  note  was 
for  "500  tons  of  Scotch  pig-iron."  The 
diversity  between  the  bought  and  sold 
notes  was  held  to  avoid  the  contract.  It 
was  held  that  the  subject  of  the  contract 
was  not  agreed  upon  between  the  parties. 
It  appeared  there,  and  the  circumstance  is 
commented  on  by  Mr.  Justice  Patteson, 
that  the  practice  is  to  deliver  the  bought 
note  to  the  buyer,  and  the  sold  note  to 
the  seller.  He  says,  "  Each  of  them,  in  the 
language  used,  purports  to  be  a  represen- 
tation by  the  brokerto  the  person  to  whom 
it  is  delivered,  of  what  he,  the  broker,  has 
done  as  agent  for  that  person.  Surely 
the  bought  note  delivered  to  the  buyer 
cannot  be  said  to  be  the  memorandum  of 
the  contract  signed  by  the  buyer's  agent, 
in  order  lliat  he  miiiht  be  bound  thereby; 
for  then  it  would  have  been  delivered  to 
the  seller,  not  to  the  buyer,  and  vice  versa 
as  to  the  sold  note." 

The  argument  on  which  the  decision  be- 
low, of  the  case  we  are  considering,  was 
based,  is  that  the  contract  of  sale  is  dis- 
tinct from  the  contract  of  purchase;  that, 
to  charge  the  purchaser,  the  suit  should 
be  brought  upon  the  bought  note;  and 
that  the  purchaser  c.nu  only  be  held  where 
his  agent  has  signed  and  delivered  to  the 
other  party  a  bought  note,— that  is,  an 
instrument  expressing  that  he  has  bought 
and  will  pay  for  the  articles  specified. 
Mr.  Justice  Patteson  answers  this  by  the 
statement  that  the  bought  note  is  always 
delivered  to  the  buyer,  and  the  sold  note 
to  the  seller.  The  plaintiff  here  has  the 
signature  of  both  parties,  and  the  coun- 
terpart delivered  to  him,  and  on  which  he 
brings  his  suit,  is,  according  to  Mr.  Jus- 
tice Patteson,  the  proper  one  for  that  pur- 
pose,— that  is,  the  sold  note. 

We  do  not  discover  in  Justice  v.  Lang, 
reported  in  42  N.  Y.  493,  and  again  in  52  N. 
Y.  323,  any  thing  that  coiitlicts  with  tlie 
views  we  have  expressed,  or  that  gives 
material  aid  in  deciding  the  points  we 
have  discussed. 

The  memorandum  in  question,  express- 
ing that  the  iron  had  bef»n  sold,  imported 
necessarily  that  it  had  been  bought.  The 
contract  was  signed  by  the  agent  of  both 
parties,  the  buyer  and  the  seller,  and  in 
our  opinion  was  a  perfect  contract,  ob- 
ligatory upon  both  tlie  parties  thereto. 

Judgment  reversed,  and  cause  remand- 
ed for  a  new  trial. 


CAMPBELL  PRINTING  PUESS  CO.  o.  THORP. 


129 


CAMPBELL  PIUNTIXG-PRESS  CO.  v. 
THORP  et  al. 

(3G  Fed.  Rep.  414.) 

Circuit  Court,  E.  U.  Michigan.     Oct.  IC,  18SS. 

At  Law.  On  exceptiona  to  referee's  re- 
port. 

Tlie  tacts  fullv  appear  in  the  following 
statement  l)y  BROWN,  J.: 

Plaintiff  atrrced  to  sell  to  the  defonrlDnts 
certain  [Jrinting-prensoH,  rollers,  ami  other 
property  connected  with  a  i)rinting  estab- 
lishnient.  and  (guarantied  that  the  pre.nses 
shonid  lie  "free  from  defective  material  or 
workmanship,  and  should  do  their  work 
satisfactorily  "  The  referee,  to  whom  the 
case  was  referred,  found  that  neither  of 
the  three  presses  was  satisfactory  to  de- 
fenilants;  nor  did  they  do  their  work  rea- 
8onat)ly  well,  yet  he  found  as  a  conclu- 
sion of  law  that  the  plaintiff  was  entitled 
to  recover  the  whole  aj^reed  price,  less  a 
small  sum,  conceded  as  a  set-off,  upon  the 
theory  that  it  was  the  duty  of  tjie  defend- 
ants to  reject  the  presses  if  they  were  not 
satisfied  with  thera.and  that,  ha  vinj;  kept 
them,  there  was  no  method  of  estiniatinu 
the  loss  they  KufferiMJ  by  reason  of  their 
dissatisfacliiin  ;  in  other  words,  tliat  the 
value  of  a  press  that  should  work  to  their 
satisfaction  was  not  capable  of  pecuniary 
estimation. 

Charles  A.  Kent,  for  plaintiff.  W.  L. 
Carpenter,  for  defendants. 

Before  .T.XCK.SON,  Circuit  Judge,  and 
BROWN,  District  Judge. 

BROWN,  J.,  (after  stating  the  facts  as 
above.)  The  correctness  of  the  referee's 
ruling  depends  largely  upon  the  proper 
construction  of  the  guai.-inly  that  the 
l)rtss"s  should  he  Iri'C  from  defects  of 
niateriiil  or  workmanshi|i,  and  should  do 
their  work  satisf.ictoiily.  There  is  no 
doubt  of  llie  general  proposition  that 
where  one  party  agrees  to  do  i'.  piece  of 
work  to  the  satisfaction  of  another,  the 
excellence  of  whiL-h  work  is  wholly  or  in 
part  a  nintler  of  taste,  such,  for  instance, 
as  a  portrait,  a  photograph  or  liust,  a 
suit  of  clot  lies,  a  musical  instrument,  or  a 
piece  of  furniture,  the  buyer  may  reject  it 
without  assigning  .'iny  reason  for  his  dis- 
satisfaclion.  In  such  ease  the  law  cannot 
relieve  against  the  folly  of  the  vendor,  by 
incjuiring  whether  the  dissatisfaction  of 
the  vendee  was  based  upon  reasonable 
grouiMis  or  not.  It  is  even  doul)tful 
whetlier  it  can  ini|uire  into  the  good  faith 
of  the  vendee's  deci^'ion.  Brown  v  Fos- 
ter. 11;!  .Mass.  Mti:  McCarren  v  .McNnlty, 
7  Cray,  l:!!);  Gibson  v.  Cranage,*)  .\lii-h. 
40;  Hoffman  v.  Gallaher.  (i  Daly.  4l';  Za- 
leski  V.  Clark,  4t  Conn.  21s;  McChire  v. 
Rriggs.  .is  Vt.  Si>.  2  Atl.  Rep.  ."is:!.  The  true 
doctrine  is  e.xpi'csscd  in  McCarren  v.  .Mc- 
Nulty.  7  Cray.  l:!'.).  14):  "It  may  be  that 
the  plaintiff  was  injudicious  or  indiscreet 
in  undertaking  to  labor  and  furnish  niatp- 
rials  for  a  cotnp4-nsation,  the  layment  of 
which  was  made  depc^ndent  up<in  a  contin- 
gency so  hazardous  or  doubtful  as  the  ap- 
proval or  satisfaction  of  a  jiarly  [larticu- 
larly  in  intere-t.  But  of  that  he  was  the 
sole  judge.  Against  the  consc<|uence8  re- 
LAW  SALKS — 9 


iBiilting  from  his  own  bargain  the  law  can 
afford  him  no  relief.  Having  voiuntarilv 
assumed  the  obligations  and  risk  of  the 
contract,  his  legal  rights  are  to  be  aHcer- 
tuiiied  anil  determined  solely  according  to 
its  [irovisions. "  other  cases  extend  th» 
same  floctrine  to  contracts  fur  the  per- 
formance  of  labor,  or  tor  the  support  of 
another  to  his  satisfaction.  In  such  case 
the  employer  may  be  wholly  dlssatlBlied 
with  the  character  of  the  service  rendered, 
or  the  beneliciary  made  exceedingly  un- 
comfortable by  his  surroundings,  without 
in  either  case  being  able  to  assign  what 
the  law  would  recognize  as  o  sullicieut 
reason  for  bis  dissatisfaction.  It  inakeu 
him,  however,  the  sole  judge  ol  the  rea- 
sonableness of  his  ijwn  discontent.  Tay- 
lor v.  Brewer.  1  .\Iaule  &  !S.  -.".Itt;  Rossitcr 
V.  Cooper.  T.\  Vt.  :>22;  Tvler  v.  Ames,  6 
Lnns.  2M);  Hpring  v.  Clock  Co..  24  Hun. 
17.'i;  Hart  v  Hart.  22  liarb.  COr,;  Ellis  v. 
Mortimer,  1  Bos.  &  P   N.  It.  2.'i7 

\\  hether  these  words  shonhl  receive  the 
same  construction  where  the  suitablenesH 
of  the  article  furnished  invidves  no  ques- 
tion of  taste  or  personal  feeling,  but  sim- 
ply one  of  mechanical  fitness  tcj  do  a  cer- 
tain work,  or  accomplish  a  certain  )iur- 
pose,  admits  of  some  doubt.  The  author- 
ities are  not  entirely  httrniimious,  but  the 
decided  weight  of  authority  is  in  favor  of 
the  construction  given  to  it  by  the  ref- 
eree. So  far  as  this  state  is  concerned, 
two  decisions  seem  to  [lut  the  matter  en- 
tirely at  rest.  In  Machine  Co.  v.  .Smith. 
')()  Mich.  ."i(i5,  1.5  X.  \V.  Rep.  '.mm;,  it  was  held 
that  where  the  vendor  of  a  harvesting- 
machine  gave  a  warranty  that  the  con- 
tract of  purchase  should  l)eof  no  effect  un- 
less the  machine  worked  to  the  buyer's 
satisfaction,  it  was  held  the  purchaser 
had  reserved  the  absolute  right  to  reject 
the  machine,  and  that  his  reasons  for  dt)- 
ing  so  could  not  he  investigated.  .\  still 
stronger  easels  that  of  Manufacturing  Co. 
V.  Ellis.  (;s  Mich.  101.  :).-.  N.  W.  Rep.  h41. 
The  agreement  was  that  a  certain  grain- 
binder  shoiil<l  do  good  work  and  "give 
satisfaction."  It  was  held  that,  unless 
the  defendant  was  satislieil  with  the  ma- 
chine, although  it  did  go  id  work,  he  was 
not  bound  to  purchase.  See.  also.  Piatt 
V.  Rroderick,  70  .Mich.  .".77.  :Js  N.  \V.  Refi. 
.579.  In  the  case  of  Machine  Co.  v.  Ches- 
rown.  :y.^  .Minn.  :!2,  21  N.  W.  Rep.  sm\.  plain- 
tiff guarantied  to  furnish  defendant  n 
cord-binder  guarantied  to  work  satisfac- 
torily. It  was  held  taat  in  c<ise,  upon 
reasonable  trial,  it  did  not  work  satisfac- 
torily, it  was  unnecessary  lor  the  defend- 
ant "to  return  it  to  iilaintiff.  but  it  was 
sullicient  for  him.  withiti  a  reasonable 
time,  to  notify  plaintiff,  in  substance,  that 
it  did  not  work  satisfactorily. and  that  he 
declined  to  accept  it.  The  same  ruling 
was  made  with  regard  ton  steam-boat,  in 
Gray  v.  Itailroad  Co.,  11  Hun.  70;  with  re- 
gard to  a  machine  for  generating  gas.  In 
.Viken  v.  Hyile.  !•'.•  Mass.  1.^:1;  with  regard 
to  a  fanning  mill,  in  Goodrich  v.VanNort- 
wlck.4:t  Ill.44.'i;  and  with  regard  to  a  pas- 
senger elevator,  ill  SIngerly  v.  Thayer,  los 
Pa.  St.  2'.tl.  2  .Ml.  Rep. '-'in.  In  this  latter 
case  a  large  number  of  aulhorilies  Bre 
cited  liy  counsel  and  court  to  the  sniuo 
effect.  The  New  York  cases  at  llrst    lilusU 


i^n 


CAMl'lJKLL   I'lMXTING   I'liESS  (^O.  v   TIIOKP 


would  Kueiii  to  lay  tiowii  a  tlifferent  rule, 
but  wlicn  enrefully  i!xnniined  the  difforence 
is  more  apparent  than  real.  The  earliest 
case  is  that  of  Folliard  v.  Wallace,  L' 
Johns.  3!t.i,  in  vsiiieh  one  covenanted  that 
in  case  the  title  to  a  lot  of  land  conveyed 
to  him  should  prove  jjood  and  sufficient 
in  law,  that  lie  woiilil  pay  to  a  third  par- 
ty, three  months  after  he  should  be  well 
satisfied  that  the  title  was  undisputed 
and  Kood  against  all  other  claims.  It 
was  held  that  tlie  award  of  certain  com- 
missioners on  the  title  in  favor  of  the  cov- 
•Miantor  ou^'ht  to  satisfj'  him,  and  that  it 
\VMS  not  euoush  for  the  defendant  to  al- 
lege that  he  was  not  satisfied  with  the  ti- 
tle without  some  good  reason  lieing  as- 
signed for  his  dissatisfaction,  and  that  he 
was  not  to  judge  for  himself,  but  tliat 
the  law  would  determine  when  he  ought 
to  be  satisfied.  Chancellor  Kent,  who  de- 
livered the  opinion,  observed  that  "if  the 
defendant  were  left  at  liberty  to  judge  for 
himself  when  he  were  satisfied,  it  would 
totally  destroy  the  obligation,  and  the 
agreement  would  be  absolutelj'  void." 
In  City  of  Brooklyn  v.  Kailway  Co.,  47  N. 
Y  475,  an  action  was  urought  upon  a  cov- 
enant in  which  the  defendant  agreed  to 
keep  the  pavement  of  certain  streets  in 
thorough  reiiair  within  the  traclis,  etc.,  un- 
der the  dirtction  of  such  competent  au- 
thority as  the  common  council  might  des- 
ignate. The  court  held  that,  if  the  pave- 
ment were  kept  in  tliorough  repair, it  was 
sutlicient  though  it  was  kept  up  without 
dirfction  from  the  competent  authority 
designated  by  the  common  council. 
"That  which  the  law  shall  sa.y  a  contract- 
ing party  ouj^ht  in  reason  to  be  satis- 
fied with,  that  the  lau  will  say  he  is  sat- 
isfied with."  A  like  ruling  was  made  in 
Miesell  v.  Insurance  Co..  70  N.  Y.  11.5,  with 
reference  to  the  certificate  of  a  physician 
in  a  life  insurance  case;  and,  finallv,  in 
Boiler  Co.  v.  Garden,  101  N.  Y.  .'W,  4  N.  E. 
Rep.  740,  the  parties  entered  into  a  contract 
by  which  plaintiff  agreed  to  alter  certain 
boilers  belonging  to  defendants,  for  which 
the  defendants  agreed  to  pay  the  stipu- 
lated price  "as  soon  as  they  are  satisfied 
the  l)oilers  as  changed  are  a  success.  "  in 
an  action  to  rfcover  the  contract  price, 
the  defendants  claimed  the  nuestion  as  to 
whether  the  work  was  a  success  was  one 
alone  for  them  to  determine.  This  was 
held  to  be  untenable,  and  that  a  simple 
allegation  of  dissatisfaction  without  a 
good  reason  therefor  was  no  defense. 
The  prior  cases  were  quoted  as  settling 
the  law  in  that  state.  None  of  these 
cases,  however,  related  to  the  sale  of  man- 
ufactured articles.  In  none  of  them  was 
there  an  oijportunit.v  for  a  rescission,  and 
re8ti>ring  the  parties  to  their  statu  quo. 
The  last  caseparticularly  is  much  like  that 
of  Iron  Co.  v.  Best,  14  Mo.  .\pp.  .")(«, 
hereafter  cited,  and  is  subject  to  the 
same  criticism. 

Notwithstanding  the  cases  in  New  York, 
and  admitting  all  that  is  claimed  for 
them,  the  weiglit  of  aiitliority  as  well  as 
of  reason  iiiclines  us  to  the  opinion  that 
the  parties  must  stand  to  their  contract 
as  they  have  made  it,  and  if  the  vendor 
lias  agreed  to  furnisli  an  article  that  shall 
tie  satisfactory  to    the   vendee,  he  consti- 


tutes the  latter  the  sole  arbiter  of  his  own 
satisfaction.  It  is  entirely  well  settled 
that  if  the  acceptance  of  a  machine  is 
made  dependent  u[)on  the  approval  of  an 
engineer,  or  if  a  pavement  is  to  be  laid  to 
the  satisfaction  of  a  street  commissioner, 
or  if  lumber  is  to  lie  scaled  by  an  inspect- 
or, the  decision  of  such  agent,  in  the  ab- 
sence of  fraud,  bad  faith,  or  clear  error,  is 
conclusive.  We  know  of  no  reason  of  pub- 
lic polic.v  which  prevents  parties  from  con- 
tractine  that  the  decision  of  one  or  the 
other  sliall  be  conclusive.  In  th?  case  of 
chattel  mortgages  the  rule  is  entirely  well 
settled  that,  if  the  mortgage  provides 
that  mortgagee  may  take  possession 
whenever  he  deems  his  security  unsafe, 
the  mortgagor  thereby  submits  himself 
to  the  judgment  of  the  mortgagee  on  the 
question  of  security,  and  the  latter  is  not 
bound  to  prove  circumstances  justifying 
his  action.  Certain  cases,  however, estab- 
lish a  reasonalile  modification  of  this 
rule,  to  the  effect  that  the  dissatisfaction 
must  be  real,  and  not  feigned,  and  that 
the  vendee  is  not  at  liber'y  to  say  he  is 
dissatisfied  when  in  reality  he  is  not ;  in 
other  words,  that  his  discontent  must  be 
genuine.  Manufacturing  Co.  v.  Brush,  43 
Vt.  r>L'S;  Daggett  v.  .lohnson,  49  Vt.  345; 
iMcClure  v.  Briggs,  .")S  Vt.  S2,  L'Atl.  Rep. 
.5S3.  The  same  cases,  however,  hold  that, 
while  the  vendee  is  bound  to  act  honestly, 
it  is  not  enough  to  show  that  he  ought 
to  have  been  satisfied,  and  that  his  dis- 
cont'.'iit  was  without  good  reason.  See, 
also,  Lynn  v.  Railroad  Co.,  (iO  Md.  404; 
Railroad  Co.  v.  Brvdon,  05  Md.  1!)S,  (ill,  3 
Atl.  Rep.  30(i,  and  'J  Atl.  Rep.  U'G.  In 
Manufacturing  Co.  v.  Cliico,  24  Fed.  Rep. 
S93,  it  was  held  that  where,  under  a  con- 
tract, a  fire-engine  was  to  be  made  and 
delivered  which  should  be  satisfactory  to 
the  purchaser,  it  must  in  fact  be  satisfac- 
tory to  him,  or  he  is  not  bound  to  take  it ; 
but  that,  where  the  purchaser  was  in  fact 
satisfied,  but  fraudulentl.v,  and  in  bad 
faith,  declared  that  he  was  not  satisfied, 
the  contract  had  been  full.v  performed  by 
the  vendor,  and  the  purchaser  was  bound 
to  accept  the  article.  This  I  regaril  as 
an  accurate  summary  of  the  whole  law 
upon  the  subject. 

Somedoubt  is  thrown  upon  this  case  by 
the  stipulation  that  tlie  presses  shall 
work  satisfactorily,  without  stating  the 
person  to  whom  they  shall  be  satisfacto- 
ry. We  think,  however,  that  there  can  be 
but  one  interpretation  fairly  given  to 
these  words.  When,  in  common  language, 
we  speak  of  making  a  thing  satisfactory, 
we  mean  it  shall  be  satisfactory  to  the 
person  to  whom  we  furnish  it.  It  would 
be  nonsense  to  say  that  it  should  be  sati.s- 
factory  to  the  vendor.  It  would  be  in- 
definite to  say  that  it  should  besatisfac- 
tor.v  toa  third  person,  without  designating 
the  i)ersou.  it  can  only  be  inteiide<l  that 
it  shall  besatisfactory  to  the  person  whois 
himself  interested  in  itssatisfactory  ojiera- 
tion,and  that  is  thevendee.  This  was  the 
view  taken  of  similar  words  in  Taylor  v. 
Brewer,  1  Maule  &  S.  290;  Machine  Co.  v. 
Chesrown,  33  Minn.  32,  21  N.  W.  Rep.  S46; 
and  in  Gingerly  v.  Thayer.  10»-Pa.  .St.  291, 
2  Atl.  Rep.  230.  The  case  of  Iron  Co.  v. 
Best,  14   Mo.   App.   503,   is  clearly    distin- 


CAMPBELL  PRIXTIXG-PRESS  CO.'c.  THORP. 


i:Jl 


(iiiiHhnble  from  the  ciiHes  last  cited.  In 
tliiH  case  (iefeiidfuit  agreed  to  build  an  air- 
furnace  in  plaintiff's  wareliouse.  acconl- 
iuK  to  a  plan  to  be  furnished  by  himself. 
The  furnace  thuH  l)ecanie  attached  to  the 
freehold  of  the  plaintiff,  and  was  incapa- 
ble of  Be  vera  nee.  It  was  a  structure  into 
which  the  plaintiff  had  put  all  the  mate- 
rials and  the  (iefcndnnt  had  |)ut  all  the 
lat)or.  Defendant  could  not  take  away 
the  materials,  because  tliey  were  not  only 
attached  to  plaintiff's  freehold,  but  actu- 
ally beloDKed  to  him.  His  labor  was 
none,  and  couh]  not  be  recalled.  To  per- 
mit the  plaintiff,  under  such  circum- 
stances, to  refuse  to  pay,  if  in  fact  the  fur- 
nace worked  reasonably  well,  and  at  the 
Hanie  time  to  retain  the  fruits  of  defend- 
ant's labor,  would  have  been  an  unwar- 
rantal)le  extension  of  the  doctrine  applied 
to  machines  or  articles  of  manufacture 
which  can  be  rejected.  The  court  very 
properly  hehl  that  the  covenant  was  sat- 
isfied if  the  furnace  worked  reasonably 
well.  Conceding,  then,  that  the  i)1nintiff 
was  bound  to  furnish  presses  that  should 
Work  satisfactorily  to  the  defendants,  it 
is  very  evident  that  they  were  not  satis- 
fied with  their  operation,  and  that  they 
hud  reasonable  f^rounds  for  their  dissatis- 
faction, as  the  referee  linds  that  the 
presses  neither  worked    to   their  Butisfac- 


j  tion,  nor  reas.mubly  well.     This  undoubt- 

ledlysave  them    the   power   to   reject    the 

I  machines.  Instead,  of  dolni:  this,  how- 
ever, they  kejit  them,  and  now  seek  to  re- 
coup their  damnKes  by  reason  of  their  fail- 
ure to  work  as   thev  ought    to.     Had    the 

I  covenant  been  that  the  presses  should 
work  well,  weshoiihl  have  no  doubt  that 

'  the  defendants  niiirht  have  recoupeil  such 
damages,  and  that  the  referee  would  have 
found  them  ca|)able  of  estimation.     These 

;  damages  woulil  linve  been  the  illfference 
in  value  between  presses  which  would 
work  reasonably  well  and  those  wtilch 
were  actually  furnished  I!iit  in  attempt- 
ing to  apply  the  same  rul<' in  the  prt-sent 
case,  we  encounter  a  formidable   dithculty 

I  from  the  impossibility  of  li.xing  the  value 
of  machines  which  shall  work  to  the  sat- 
isfaction  of  the  ilefendants.  It  will  not  do 
to  say  that  such  value  Is  to  be  gauged  by 
that  of  a  machine  which  shall  work  reu- 
sonalily  well,  because  such  a  press  might 
not  have  been  satisfactory  to  the  vendee, 
or  he  might  have  been  content  with  one 
which  would  not  have  workeil  to  the  sat- 
isfaction of  exjierts  in  the  business.  We 
think  that,  having  elected  to  retain  the 
presses,  they  are  bound  to  pay  the  full 
I)rice  for  them.  The  exceptions  to  the  re- 
feree's report  will  tliiTefore  be  overruled, 
and  judgment  entered  upon  bi8  finding. 


u^ 


CAKDIXF.LL  o.  BEWETT. 


1:3:} 


CARDIXBr.L  T.  BEXXKTT  ct  al. 

(52  Cal.  47C.) 

Sniircine  Court  of  California.    Oct.  Terra,  187". 

Action  l).v  John  A.  Cardinoll  OKain.st 
CharlpH  A.  lipnnctt  and  aiiotlipr,  to  recover 
a  horse  or  its  value.  From  a  jiiilj;ment 
for  plaintiff  defendantK  appeal.     Keverwed. 

One  Carpenter,  the  owner  of  the  horse, 
flKreed  with  iilaintiff  to  Kive  it  to  him  on  a 
date  named,  in  e.xehansu  for  a  Ijuf^f^y  and 
$•.'.'>(),  plaintiff  payiuji  one  dollar  at  tlie 
time  the  afiTeement  was  made.  There- 
after Carpenter  Hold  the  horse  to  defend- 
ant Bennett,  and  could  not  deliver  it  to 
plaintiff  wijen  called  on  to  do  so. 


Tilden  &  WilHon.fornppellant.  ThomoH 
V.  O'Brien,  tor  respondent. 

BY  THK  COUItT.  Plaintiff  had  no 
[>rop('rt.v,  either  Kffiieral  or  H|ierial,  in  the 
lioTHe  "Chief  Crowley"  at  the  time  of  the 
alleged  conversion,  or  when  thin  action 
was  commenced.  The  transaction  did 
not  amount  to  a  sale  on  credit  from  Car- 
penter to  Cardinell,  hut  a  C(jntract  wiiere- 
hy  it  was  agreed  that  the  latter  slionli] 
acquire  the  property  on  the  performance 
of  certain  conditions  promised  liy  liini  to 
be  performed. 

Judgment  and  order  reversed  and  case 
remanded. 


CAUI.KINS  r.  IIKIJ.MAX. 


i:J5 


CAULKI.VS    V.    IIKI.I.MAN 

(47  N.  Y.  440.) 

Court  of  Appeals  of  New   York.     1872. 

Action  to  recover  for  winea  and  canks 
sold. 

Stephen  K.  Williams,  for  appellant.  E. 
G.  Latham,  for  respondents. 

RAPALU),  J.  The  instruptions  to  the 
jury  as  to  tjie  IcRol  effect  of  the  delivery 
of  the  wine  at  IJIood'H  Stution  in  conform- 
ity with  the  terniH  of  tlie  verbal  contract 
of  sale  were  clearly  erroneous.  No  act  of 
tlie  vendor  alone,  in  performance  of  a  con- 
tract of  sale  void  liy  the  statute  oi  fruuds, 
can  Kive  validit.v  to  such  a  contract. 

Where  a  valid  contract  of  sale  is  made 
in  writing  a  delivery  i)ursuant  to  such 
contract  at  the  place  agreed  uiK)n  for  de- 
livery, or  a  shipment  (jf  the  Koods  in  con- 
forn.ity  with  the  terms  of  tiin  contract, 
will  pasH  the  title  to  the  vendee  without 
any  receii)t  or  acceptance  of  the  >?oods  hy 
him.  Hut  if  the  contract  is  oral,  and  no 
part  of  the  price  i.s  paid  by  the  vendee, 
there  must  be  not  onl.v  a  delivery  of  the 
Roods  by  the  vendor,  but  a  receipt  and  nc- 
ce[)tance  of  them  by  the  vendee  to  pass 
the  title  or  make  the  vendee  liable  for  the 
price;  and  this  accei)tance  must  be  V(diin- 
tary  and  unconditional.  Kven  the  receipt 
of  the  y;ou(ls,  without  an  acceptance,  is 
nt)t  KuHicient.  Some  act  or  conduct  on 
the  |)art  of  the  vendee,  or  his  authorized 
agent,  manifestiufi  an  intention  to  accept 
the  goods  as  a  performance  of  the  con- 
tract, and  to  appropriate  them,  is  re- 
quired to  supply  the  place  of  a  written 
contract.  This  dJKtiiictioti  seems  to  have 
been  overlooked  in  the  charge.  The 
learned  judge  instructe<l  the  jury,  as  a 
matter  of  law,  that  if  the.v  were  satisfied 
that  the  wine  or  any  portion  of  it  was 
actually  delivered  in  pursuance  of  the 
verlial  contract,  that  circumstance  was 
sufticient  to  take  the  contract  out  of  the 
statute  of  frauds,  and  the  contract  was  a 
valid  one, and  might  be  enforced  notwith- 
standing it  was  not  in  writing.  The  at- 
tention of  the  jury  was  directed  to  the  in- 
quiry whether  the  plaintiffs  had  faithfully 
performed  their  part  of  the  contr.ict 
rather  than  to  theaction  of  thedefeinlnnt, 
and  the  juilge  proceeded  to  state  that  if 
the  wine  was  delivered  to  tliee.\press  com- 
pany at  lUood's  Station  in  good  ord'M-,  in 
nierchau table  condition,  and  corresponded 
in  quality  and  all  substantial  and  mate- 
rial respects  with  the  saujples.  then  he  in- 
structed the  jury  as  a  matter  of  law.  that 
if  they  found  the  contract  as  dordon  tes- 
tilied  with  respect  to  the  place  of  delivery, 
that  was  a  complete  delivery  under  the 
contract,  and  passed  the  title  from  the 
plaintiffs  to  the  defendant,  and  the  plain- 
tiffs were  entitled  to  recover  the  contract 
price  of  the  wines. 

The  plaintiff's  counsel  suggests  in  the 
statement  of  facts  appended  to  his  points, 
that  (Jordou  was  the  agent  of  the  defend- 
ant, to  accept  the  g'lods  at  l!lood"s  .Sta- 
tion, liut  this  statement  is  not  borueiuit 
hy  the  evidence:  (>ordon  was  the  agent  of 
the   plaintiffs  for  the  sale  of   the  goods;  it 


was  incumbent  upon  them  to  make  the 
shipment.  All  that  (iordon  testllies  to  is 
that  the  delendant  rciiuesteil  him  to  make 
the  best  bargain  he  could  for  the  freight. 
He  does  not  claim  that  he  had  any  au- 
thority to  accept  tbegcMids  for  the  defend- 
ant. 

According  to  the  defendant's  testimony 
Gordon  clearly  had  no  such  authority, 
nor  did  the  defendant  designate  any  con- 
veyance,and  the  judge  submitted  no  ques- 
tion to  the  jury  as  to  the  authority  either 
of  (iordon  or  the  express  company  to  ac- 
cept the  goods.  On  the  contrary,  he  re- 
peated that  if  when  the  wine  was  deliv- 
ered at  lUood's  Station  it  was  in  good 
order  and  corresi)onded  with  the  saajples. 
the  plaintiffs  Would  be  entitled  to  a  verdict 
for  the  contract  price.  U(K)n  the  ground 
that  the  parties  by  the  ointract  i  assum- 
ing it  to  be  as  claimed  by  the  plaintiffs), 
fixed  upon  that  station  as  the  jilace  of  de- 
livery; "tliat  it  was  true  that  the  defend- 
ant was  not  there  to  receive  it.  and  had 
no  agent  at  Blood's  Station  to  receive  It, 
and  had  no  opportunity  to  inspect  It 
there;  but  that  that  was  a  contingency 
he  had  not  seen,  and  which  lie  might  liave 
guarded  against  in  the  contract.  " 

It  is  evident  that  the  li'arncd  judgt-  ap- 
I)lied  to  this  rase  the  rule  as  to  delivery , 
which  wotiiil  t)e  appliciilile  to  a  valid, 
written  contract  of  sale,  but  which  is  In- 
applicalile  when  the  contract  Is  void  by 
the  statute  of  frauds. 

The  effect  of  the  delivery  of  goods  at  a 
railway  station,  to  lie  forwarded  to  the 
vendee  iii  pursuance  of  the  terms  of  a 
verlial  ccmtract  of  sale,  was  ver.v  full.v  dis- 
cussed in  the  case  of  Norman  v  riilllips, 
14  .Mees.  &  Wels.  277,  and  a  verdict  for  the 
plaintiff  foun<led  upon  such  a  ilelivery, 
and  upon  the  additional  fact  that  the  ven- 
dor sent  an  invoice  to  the  vendee,  whicll 
he  retained  for  sevcial  weeks,  was  set 
aside.  Tlie  Knglish  authorities  on  the 
8ul)ject  are  revieweii  in  that  case,  and  tlie 
American  anil  Knglish  authorities  liearing 
ujion  the  same  question  are  also  relerreil 
to  in  tlie  late  cases  of  Kodgers  v.  I'hillips, 
40  N.  Y.  .")19,  and  Cross  v.  O'Donnell.  44  id. 
(Itil  ;  4  .Vm.  Uep.  7l'1.  The  latter  case  ia 
cited  liy  the  counsel  for  the  plaintiffs  as  an 
authority  for  the  proposition  tliat  a  de- 
livery toa  designated  carrier  is  sullicienc 
to  take  the  case  out  of  the  statute;  but  it 
does  not  so  ilecide.  It  holds  only  that 
the  receipt  anil  acceptance  need  not  be 
simultaneous,  but  tliat  they  may  takc^ 
place  at  different  times,  and  that  after  the 
purchaser  had  himself  inspected  and  ac- 
cepted the  goods,  purchased  the  delivery 
of  tlicin  by  his  direction  to  a  designated 
carrier  was  n  good  delivery,  and  tlie  car- 
rier was  the  agent  of  tlie  purchaser  to  re- 
crive  them.  No  question  however  arlsett 
in  file  present  casi' as  to  a  dell  very  to  a 
designated  carrier,  as  tlie  evidence  in  re- 
spect totheagieed  nioile  of  delivery  is  con- 
flicting, and  no  (luesiion  of  acceptance  by 
the  carrier  as  agent  for  the  defendant  was 
submitted  to  the  jury. 

The  jinlge  submlttcfl  to  the  jury  two 
(luestious,  to  which  ho  reciuired  specitlc 
answers. 

Ist.  Was  the  wine  delivereil  at  the  rail- 
road station  at  the  time   agreed  upon    by 


13G 


CAULKINS  V.  IIELLMAX. 


the  parties,  and  wns  it  tlicn  in  all  rewpects 
in  S'xiil  order,  and  like  tlie  samples  exhih- 
ited  by  tlie  plaintiff  to  tliedeiundantV  and, 

2(1.  Was  the  wine  accepted  by  tlie  de- 
Jendant  after  it  readied  liis  place  of  busi- 
iioss  in  New  York? 

The  jnry  nnswered  both  of  these  ques- 
tions "in  tlie  allirniative,  and  it  is  now 
<:laiiiied  that  the  answer  to  the  second 
question  renders  immaterial  any  error  the 
judse  may  have  coniniitted  in  respect  to 
the  effect  of  the  delivfrv  at  the  station. 

it  is  (lifHcult  to  H/id  any  evidence  justify- 
ing lliesiiliniission  to  thejury  of  the  second 
<]iiestion;  luit  no  excepticn  was  taken  to 
«uch  submission.  The  motion  foranonsuit 
would  have  raised  tiiat  point,  were  it  not 
for  the  fact  that  there  was  evidence  to  go 
to  the  jury  on  the  claim  of  .ff)!'  for  barrels, 
and  tills  precluded  a  nonsuit.  We  think 
however  that  theerror  in  the  cliarue  may 
have  misled  thejury  in  passing;  upon  thesec- 
<)n<l  question  ;  at  allevents,it  isnot  impos- 
sible that  it  should  'lavedone  so.  Having 
lieeu  instructed  that  upon  the  fact  as  they 
found  it  in  respect  to  the  agreement  for  a 
<lelivery  at  Blood's  Station,  the  title  to 
the  goods  had  passed  to  the  defendant 
liefore  the  receipt  of  theinat  New  York,  and 
that  their  verdict  must  lie  for  the  iilain- 
titfs.  they  may  have  examined  thequestion 
of  his  acceptance  of  them  at  New  Y'ork 
with  less  scrutiny  than  they  would  have 
exercised  had  they  been  informed  tliat  the 
result  of  the  case  depended  upon  their  find- 
ing on  that  question.  And  the  construc- 
tion of  the  defendant's  acts  and  language 
may,  iu  some  degree,  have  been  influenced 
lij' theconsideration  that  when  the  winear- 
rived  in  New  York  the  title  had,  according 
to  the  theory  on  which  the  case  was  sub- 
mitted to  them,  passed  to  the  defendant, 
and  lie  had  ncj  right  to  reject  the  wines. 
Furthermore,  we  think  the  judge  erred  in 
excluding  the  evidence  of  the  contents  of 
the  telegram  which  thedefenrtant  attempt- 
ed to  send  to  the  pUiintiffs  immediately 
niion  the  receipt  of  the  wine.  If,  as  was 
offeied  to  he  shown,  it  stated  that  he  de- 
clined to  accept  the  wine,  it  was  material 
as  part  of  the  res  gestre.  A  bona  fide 
attempt,  immediately  on  the  receipt  and 
examination  of  the  wine,  to  communicate 
such  a  message,  was  an  act  on  his  part 
explaining  and  qualifying  his  conduct  in 
receiving  the  wine  into  liis  store  ami  al- 
lowing it  to  remain  there.  And  even 
though  the  message  never  reached  the 
plaintiffs,  it  bore  upon  the  question  of  ac- 
ceptance   by   the  defendant.    The    oltjec- 


tion  to  the  evidence  of  the  contents  of  the 
telegram  was  not  placed  <>■,]  the  ground 
of  omission  to  produce  the  original,  and 
the  judge  in  his  charge  instructed  the  jury 
that  the  attempt  to  .send  this  telegram 
did  not  affect  the  plaintiffs'  rights,  tor  the 
reason  that  it  was  not  shown  to  have 
been  received  by  them,  and  this  was  ex- 
cepted to.  In  Norman  v.  Phillips, 14  .Mees. 
&  Wels.  277,  the  defendant  was  allowed 
to  prove  that  on  being  informed  by  the 
railway  clerk  that  the  goods  were  lying 
for  him  at  the  station,  he  said  he  would 
not  take  tbem,  and  stress  was  laid  upon 
the  fact.  Yet  this  statement  to  the  clerk 
was  not  communicated  to  the  plaintiff. 
Evidence  of  an  attempt  to  send  a  message 
to  them  to  the  same  effect,  though  un- 
successful, would  have  lieeii  no  more  ob- 
iectioual)le  than  the  declaration  to  the 
clerk.  The  acts  of  the  defendant  at  the 
time  of  the  receijit  of  tlie  goods,  and  his 
bona  fide  alteui])t  to  comnuinicate  to  the 
.  plaintiffs  his  rejection  of  tnem  were  I  think 
j  material  and  competent  to  rebut  any  pre- 
;  sumption  of  an  acceptance  arising  from 
I  their  retention  by  liim. 
j  The  judge  was  requested  to  instruct  the 
i  jury  that  the  true  meaning  of  the  defend- 
j  ant's  letter  of  March  31  was  a  refusal  to 
I  accept  the  wine  under  tlie  contract.  A 
j  careful  examination  of  that  letter  satis- 
fies us  that  the  defendant  was  entitled  to 
have  the  jui-y  thus  instructed.  The  letter 
clearly  shows  that  the  defendant  did  not 
accejit  or  appropriate  the  wines.  After 
cotnplaining  in  strong  language  of  their 
quality  and  condition,  and  of  the  time 
and  manner  of  their  shipment,  he  says  to 
the  iilaintiffs,  "what  can  be  done  now 
with  the  wine  after  it  suffered  so  much, 
and  shows  itself  of  such  a  poor  qualit> '? 
I  don't  know  myself  and  am  awaiting 
your  advice  and  opinion."  He  conclu<les 
by  expressing  his  regret  that  their  first 
direct  transaction  should  have  turned  out 
so  unsatisfactory,  and  by  stating  that  he 
cannot  be  the  sufferer  by  it,  and  he  awaits 
their  <lisposition. 

'J'liis  language  clearly  indicates  an  in- 
tention to  throw  upon  the  plaintiffs  the 
responsibility  of  directing  what  should  be 
done  with  the  wine,  and  is  inconsistent 
witii  any  acceptance  or  appropriation 
of  it  by  the  writer. 

For  these  reasons   the  judgment  should 
be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 
All  concur. 
Judgment  reversed. 


CHAN'DELOU  v.  LOPUS. 


139 


CriANDELOR  v.  LOPUS. 

(2  Cro.  Jac.  2.) 
Exchoiiuor  Chamber,  Easter  Term. 

Action  upon  tlie  coBe:  Whereas  the  dc- 
feixliint  beirm  a  frf'ilHniith,  and  havinjr 
skill  in  jewels  and  iirecioua  stones,  had 
a  stone,  which  he  aftirnied  to  Lopus  to  he 
a  lipznr-stone,  and  sold  it  to  him  f'lr  one 
hunilred  pounds;  uhi  revers.  it  was  not  a 
bezar-Htone.  The  defenilant  pU'ade<l  not 
guilt.v,  and  verdict  was  niven  and  judR- 
raent  entered  for  the  plaintiff  in  the  kinfi'K 
bench. 

But  error  was  tliereof  brought  in  theex- 
chequer  chamber;  because  tlie  declaration 
contains  not  matter  sufficient  to  charKe 
the  defendant,  viz.  that  he  warranted  it 
to  be  n  bezar-stone  or  tliat  he  knew  that 
it  was  not  a  bezar-stone;  for  it  may  lie 
that  he  himself  was  ignorant  whether  it 


were  a  bezar-stone  or  not.  And  all  the 
justices  and  barons  le.xcept  A.NDEHSON) 
held,  tliat  for  this  cause  it  was  error.  For 
the  bare  aliirmation  that  It  was  a  bezar- 
stone,  without  warrnntinu  it  to  he  ho, 
is  no  cause  of  action.  .\iid  although  he 
knew  it  to  be  no  bcznr-stoiic.  it  Is  not  ma- 
terial. For  everyone,  in  selling  his  wares, 
will  allirni  that  his  wares  are  good, or  the 
horse  which  he  sells  is  sound  :  yet  if  he 
does  not  warrant  them  to  be  so,"  it  Is  no 
cause  of  action.  And  the  warrantyouglit 
to  be  made  at  the  same  time  as  the  sale. 
Fitz.  Nat.  Brev,  y4.  c.  &  its,  b;  h  lien.  7, 
pi.  41;  U  Hen.  ti,  pi.  ->:i;  12  Hen.  4,  pi.  1; 
42  Ass.S;  7  Hen. 4.  pi.  I.").  Wherefore. foras- 
much as  no  warranty  is  allegeil,  they  held 
the  declaration  to  belli.  .V.NDEHSON  to 
the  contrary  ;  for  the  deceit  in  selling  It 
as  a  bezar,  whereas  it  was  not  so.  Is  cause 
of  action.  Hut  notwithstanding  it  was  ad- 
judged to  be  no  cause,  and  the  judgment 
was  16  versed. 


Il 


CHAPMAN  V.  MUKcn. 


141 


CIIArMAN  V.  MLUCII. 

(1!)  Johns.  290.) 

Supreme   Cmirt   of  New   York.     Jan.   Torm, 
1S2-J. 

In  oiTor  tdthe  court  or  common  plens  of 
Wnsliiiititdii  county.  Cliapnian  L-rouKht 
tin  ii('ti<)ii  of  a.-<siinip8it  auniiist  Mnroli  in 
the  coiiit  Ik'Iow,  The  liecluration  stated, 
that  the  (It'iciidant,  on  the  l.st  of  Dwem- 
1(.M-,  ISls.  in  ccjnKiileration  that  theiilain- 
tiff  would  ilcliver  to  the  dcicmlant,  a  cer- 
tain horse  of  the  plaintiff  (jf  j^reat  value, 
in  exchange  for  a  certain  liorse  of  the  dc- 
fentlant.  the  defemlant  undertook  and 
promised,  that  tlie  liorse  of  the  defendant 
was  then  and  there  sound,  &!•. ;  lliat  the 
|)laintiff.  confidinj;'  in  tlie  said  promise  of 
the  defendant,  delivered  to  jjim  the  said 
horse  of  the  plaintiff,  in  cxcliMUge  for  the 
defendant's  liorse,  &c.  Yet  tlie  defendant, 
&c.  fraudulently,  &c.  diti  not  perforin  or 
regard  his  said  promise,  &e.,  for  tliat  the 
horse  of  the  defendant  was  not  sound, 
liut,  on  the  contrary,  was  unsound,  and 
had  a  certain  disease,  called  the  yellow 
wafer,  of  which  lie  afterwards,  to  wit,  on 
the  liil  day  of  Deceinlier,  Isls,  died,  wiiere- 
liy,  &v.  The  defendant  pleaded  the  gen- 
eral issue,  and  on  the  trial  of  the  cause, 
the  pl;iintiff  offered  to  prove,  that  the 
parties  exchanged  horses;  that  the  plain- 
tiff let  the  defendant  have  a  horse  worth 
1(10  dollai  <,  in  consideration  of  which  tlie 
defendant  let  the  plaintiff  have  another 
horse,  which  the  defendant,  at  the  tiine, 
representeil  to  be  sound  ;  that  the  horse 
of  the  ilefendant,  so  delivered  to  liim  in 
exchange,  was  not  sound,  hut  that  he  had 
the  disease,  called  the  yellow  water,whicli 
rendered  him  useless  and  of  no  value,  and 
that  he  died  th(?  next  day.  The  evidence 
So  offered  was  utijected  to  by  the  defend- 
ant's counsel,  and  rejected  by  the  court, 
on  the  ground,  that  this  being  an  action 
of  assumpsit  founded  on  a  warranty  of 
the  soundness  of  the  horse,  the  plaintiff, 
in  order  to  entitle  himself  to  n  recovery, 
was  bound  to  prove  an  express  warran- 
ty, and  that  the  testimony  offered  by  the 
plaintiff  did  not  amount  to  such  a  war- 
ranty.    A  hill  of  exce[)tions  was  taUen    to 


I  the  opinion    of    the    riiirl,  on    which    the 
I  writ  of  error  was  brought.     The  case  waH 
submitted    to    the    court    without    argu- 
ment, on    a  statement   of  the   points   and 
authorities. 

I 

i      SPENCER,  C.J. ,   flelivTed    the   opinion 
j  of   the  court.     In  the  various  cases  which 
have  been   cited.it   apiiears.   atiiindaiitly, 
!  that  when  the  action  is  founded  on  a  wa'r- 
j  ranty  of  the  soundness  of   a   chattel   sold, 
la    warranty  must  be   proved;    but    it   no 
I  where  appears,  tiiat  it    is   necessary    that 
the  vender  should  use  the   express   words, 
that    he    warranted    the  soundness.     If  n 
man  should  say,  on  the  sale  of  a  horse,  "  1 
pi-oaiise   you    the    horse    is    souii<l,"it    is 
ilillicult   to    conceive,  that    this    is   not   a 
warranty, an<l  an  express  one  too.    Peake 
(on  Evid. 'J2s)    says,  "in    an  aition    on   u 
:  wavranty,    the   plaintiff   must    prove    the 
sale   and     warranty."     "In    general,    (he 
says,)    a!iy   representation    made    by    the 
defendant  of  the   stale   of  the    thing  sold, 
at  the   time   of   the  sale,  will  amount  to  a 
■  warranty."     lie  adils,  "but  where  the  de- 
I  fendant  refers  to   any  document,  or  to  hlH 
belief  oiily,  in  such  cases  no  action  is  main- 
tainable, without    proof,  that  he  knew  he 
was   ivpresenting  a  falsehood."     In  every 
action   on    a   warranty,  it  must  be  shown 
that    there     was    an    express    and   direct 
affirmation  of  the  (piality  and  c<mditionof 
the    thing    sold,    as    contradistinguished 
from  opinion,  >.^c.,  and  when  that  is  made 
out,  it  would  be   an    anomaly    to    rcjiilre 
that  the    word    warrant  should    be   used. 
Any  words  of  eijuivalent  im|)ort,  showing 
the   intention   of   the   parties,    that    there 
should    be    a    warranty,    will   sullice.     In 
tlic  present   case,    the   plaintiff   offered    to 
prove    what,    under    the     circumstances, 
might  be  an  express  warranty;  and    that 
was  for  the  consideration   of  the  jury,  un- 
der the   advice    of    the    court.     Seixas   v. 
Woods,  2  Caines,  iifi.     Pasley    v.   Freeman. 
3   Terisi  Rep.  57.     ("ramer  v.  C'-adshuw.  lu 
Johns.  Rep.  4S4. 

The  judgment  must   be  reversed,  and   a 
venire  de  novo  awarded  to  the  court  be- 
low. 
Judgment  reversed. 


CLARK  0.  DRAPER. 


14;i 


CLARK  V.  DRAPKK. 

(19  N.  H.  419.) 

Superior  Court   of  Judicature  of  New   Hamp- 
shire.   Hillsiiorough.    .Tuly  Term,  1849. 

Trover  by  one  (.'lark  iigaiiiHt  Aarson 
Draper  for  a  pair  of  oxen.  A  verillct  was 
taken  by  oonHent  for  plaintiff,  on  which 
juilRiiient  was  to  be  entered,  or  the  ver- 
dict was  to  be  set  aside  and  judjiinent  en- 
tered for  defendant,  as  the  opinion  of  the 
court  should  be  upon  the  whole  case. 
\'erdict  set  aside,  and  judgment  for  de- 
fendant. 

Plaintiff  piirchaned  the  o.xen  in  suit  of 
defendant  for  .5(1(1.  giving  his  note  for  that 
amount,  and  defendant  agreeiiiK  to  keep 
the  oxen  for  plaintiff  until  the  following 
Saturday.  .\t  the  sanu!  time  deiendant 
gave  to  plaintiff  some  l)rass  knobs,  which 
he  said  the  o.Nen  wore  on  their  horiis. 
.Subse<iuently  plaintiff  sent  for  the  oxen, 
and  defendant  refused  to  give  them  up 
without  receiving  the  money  for  them, 
whereupon  this  action  was  instituted. 

Pierce,  for  plaintiff.  Sawyer,  for  defend- 
ant. 

WOODS,  .1.  This  is  an  action  of  trover, 
and  the  i)laiiitiff,  in  order  to  maintain  it, 
raust  hnveeither  a  B[)ecial  or  general  prop- 
erty in  the  thing  demanded,  together  with 
the  right  of  immediate  possession.  The 
jjroperty  may  be  absolutely  his,  yet  an- 
other may  liave  had  such  a  right  to  the 
possession  of  it  when  the  demand  was 
made  and  the  action  brought,  tlijit  the 
plaintiff  could  not,  against  the  will  of  such 
person,  lawfully  have  taken  it  into  his 
Dossession,  and  cannot,  therefore,  main- 
tain the  present  action,  founded,  as  it  is, 
upon  the  assuniiition  that  his  right  to 
possess  the  chattels  has  been  violated  by 
the  defendant. 

It  appears  that  in  the  month  of  Septem- 
ber, 1.S47,  the  |)laintiff  bought  the  oxen  of 
the  defendant  for  sixty  dollars,  who 
agfeed  to  keep  them  till  the  following 
.Saturday  tor  the  plaintiff,  at  his  re- 
♦luest.  .No  money  or  other  thing  was 
paid  for  the  oxen,  and  no  credit  was  stip- 
ulated for.  Now  that  transaction  consti- 
tuteil  a  sale  of  the  chattels  from  the  de- 
fendant to  the  plaintiff,  who  thereii()on 
became  the  owner  of  them.  .V  loss  or  de- 
struction of  them,  or  any  damage  hap- 
pening to  them  afterwards,  would  have 
l)een  the  less  or  detriment  of  the  pur- 
chaser and  not  o(  the  seller,  ami  the  claim 
of  the  hitter  for  the  price  would  have 
been  in  no  wise  affected  l>i'  such  an  oc- 
currence.    1  Inst.  iM,  -i. 

I'.ut  notwithstanding  such  change  of 
propei-ty  or  ownership,  the  vendor  h;id 
a  right  to  retain  the  oxen  till  the  price 
was  paid.  This  lien  ol  the  vendor  upon 
the  goods  sold  for  the  payment  of  the 
purchase  m(mey,  has  been  universally 
recognized  at  common  law.  and  its  prin- 
ciples somewhat  extensively  di.icassed  in 
the  cases.  It  will  be  sutiicient  to  cite  one 
or  two  of  them. 

.\  hop  merchant  sold  to  B.  on  diverse 
davK  in  .\ugust.  various  parcels  of  hops. 
Part  of   them    were    weighed    and   an    ac- 


count of  the  weights,  together  with  sam- 
ples, deliverer]  to  the  purchaser.  The 
usual  time  of  payment  with  the  trarle  was 
the  second  Saturday  subsequent  to  the 
sale.  B.  did  not  pay  for  the  hops  at  the 
usual  time,  whereupon  A.  gave  notice 
that  unless  they  were  |)nid  for  bvaiertain 
day  they  would  be  re-sohl.  The  hops 
were  not  paid  for,  and  A.  re-sold  a  part, 
with  the  consent  of  15.,  who  afterwards 
became  a  bankrupt,  and  then  A.  Rold  the 
remainder  of  the  hops  without  the  i-onsent 
of  1!.  or  his  assicnees.  .\ccount  of  the 
hops  so  sold  was  delivered  to  B.,  in  which 
he  was  charged  warehouse  rent  froni  the 
;JUtli  of  .August.  The  assignees  of  B.  de- 
manded the  hops  of  .\.,  anil  tendered  the 
<diavges  of  warehouse  rent,  \-c.,  and  on 
the  refusal  of  A.  to  deliver  them,  bri>iight 
trover.  Jt  was  holden  that  the  assignecfl 
could  not  maintain  the  action,  because 
the  party  must  have  for  that  imrpose.  not 
only  a  right  of  property  but  a  right  of 
possession;  and  that  although  a  ven<lee 
of  goods  !u-i)uires  a  right  of  profierty  by 
the  contract  of  sale,  yet  he  does  not  ac- 
(piire  a  right  of  i)o3scssion  to  the  goods 
until  he  ijavs  or  tenders  the  price.  Blox- 
am  V.  Sanders,  4  B.  &  C.  'J41,  10  Kng.  C. 
L.  Rep.  SGs. 

Nor  as  between  the  original  vendor  and 
vendee  is  the  lien  of  the  former  <livested 
by  his  giving  to  the  vendee  a  delivery  or- 
der for  the  goods  sold,  but  remaining  in 
the  vendor's  warehouse  rent  free,  al- 
though it  appeared  that  by  the  usage  of 
trade  in  Liverpool,  where  the  |i;irtles 
dealt,  goods  sold  while  in  warehouse  are 
delivered  by  the  vendor's  handing  to  the 
vendef^  a  delivery  order,  and  that  the 
holder  of  such  order  may  obtain  credit 
with  a  purchaser,  as  having  possession  of 
the  goods.  Townlev  v.  Crump,  4  Ad.  iVc 
El.  :,s. 

To  the  same  effect  is  the  case  of  Tooke 
V.  Hollinsworth,  5  Term  Rep.  I'lo. 

The  doctrine  is  fully  established  in  this 
state  bv  the  case  of  Williams  v.  Moore.  ,"> 
N.  11.  Rep.  2:!.'i. 

That  there  was  no  actual  ilelivery  In 
this  case,  so  as  to  destroy  the  lien  of  the 
defendant  for  the  price,  is  clear.  Ami  the 
delivery  of  a  part  as  and  for  the  whole,  or 
a  symbolical  or  constructive  delivery,  if 
sutiicient  for  such  an  effect,  is  not  made 
out  by  the  delivery  of  the  brass  knobs 
that  hail  been  worn  upon  the  horns  of 
the  oxen.  They  were  not  delivered  with 
the  intention  of  thereby  makini;  a  tradi- 
tion of  the  oxen,  which  is  the  essence  of 
a  symbolical  delivery.  Miit  the  casps 
plainly  show  that  the  li^n  is  preserved 
upon  "all  and  every  parcel  of  the  goods 
sold  which  actually  remain  in  the  hands 
of  the  vendor. 

.Nor  can  the  giving  of  the  note  for  the 
price,  payable  on  demand.  In  any  view, 
be  conslilerfd  as  a  payment  of  the  price. 
The  doctrine  on  this  head  was  fully  con- 
sidered and  settled  in  .laffrey  v.  Cornish. 
10  N.  11.  Rep.  ,">()■>,  where  it  was  held  that 
a  promissory  note  given  for  the  amount 
of  a  partv's  taxes,  was  not  a  paymeut  ot 
the  taxes" for  the  purpose  <if  gaining  a  set- 
tlement. The  taking  of  a  note  Is  in  no 
case  the  i)aynieiit  .>f  a  debt,  unless  there 
be   a    special    agreement    to    that    effect. 


CLAUK  V.  DRAPER. 


The  preficnt  is  a  stI•<)ll^  and  clear  case  for 
the  apiilication  of  that  aoctrino;  and  dis- 
tinct proof  tha't  the  party  talung  the  note 
intended  thereby  to  part  with  his  lien 
upon  the  property,  wonid  be  reciuired. 


Tlie  conclusion,  therefore,  is,  that  tlie 
present  action  cannot,  upon  tlie  evidence 
reported,  he  maintained;  that  the  verdict 
must  be  set  aside,  and  there  must  be 

Judgment  for  the  defendant. 


CLARK  0.  FEY. 


14; 


CLARK  et  al.  t.  FEY. 

(24  N.   E.   Rep.    70.'?,   121  N.   Y.  470.) 

Court  of  Appeals  of  New  York.    June  3,  1800. 

Appeal  from  supremecourt,  general  term, 
first  (U'partnicnt. 

Action  by  Clarence  II.  Clark  a^aiiiKt 
John  Fey  for  daniaKOH  alleged  to  have 
been  caused  by  defendant's  failure  to  ac- 
cept goods  (iron  "T"  rails)  sold  him  by 
plaintiff  by  a  written  contract  of  sale.  A 
judgment  dismissing  the  complaint  was 
alfirmed  b3'  the  general  term,  and  plaintiff 
appeals. 

Troixiwcll  Ch'velariil,  for  a[)pellants. 
Jdliii  JC.  r.irsons  and  Albert  G.  McIlotmU], 
for  respondent. 

FiNCU,  J.  It  is  not  disputed  that  the 
rails  which  were  finally  tendered  to  the 
vendee,  and  then  sold  for  his  account  and 
risk,  producing  a  dcticieucy  below  thecon- 
tract  price,  which  deficiency  forms  the 
subject  of  the  action,  were  not  the  rails 
which  the  vendee  bought  and  the  vendor 
sold.  By  the  original  written  contract, 
tliose  rails  were  to  be  500  tons,  shippecl 
"from  the  other  side,  January  or  Febru- 
ary or  March,  seller's  option."  It  is  the 
settled  rule  that, in  a  case  like  the  present, 
the  date  of  the  sliipment  is  a  material  ele- 
ment in  the  identification  of  the  i)roperf  v. 
Hill  V.  Blake,  97  N.  Y.  216;  Tol)ias  v.  J.iss- 
berger,  10.")  N.  Y.  404, 12  N.  E.  Rep.  1.3.  It 
was  not  500  tons  of  rails  generally  that 
were  the  sul)iect  of  the  contract,  but  a 
specific  quantity,  8hippe<l  from  the  other 
side  during  the  three  named  months,  and 
unless  such  were  tendered  the  contract 
was  not  performed.  The  offer  of  other 
rails  would  impose  no  obligation  upon 
the  purchaser.  It  is  clear,  therefore,  that 
the  tender  finally  made  was  not  of  the 
property  specified  in  the  contract,  and  left 
no  liability  upon  the  vendee  resulting 
from  his  refusal  to  accept,  unless  there  is 
BoMiething  else  about  the  case. 

'I'here  is  something  else  about  the  case 
upcm  which  11  e  vendors  rel.v  as  eutitling 
them  to  a  recovery;  and  that  is  an  al- 
leged parol  modification  of  the  original 
contract  which  made  the  final  tender  an<l 
the  sale  founded  upon  it  sufficient.  A  con- 
versation relative  to  the  existing  agree- 
ment took  place  between  the  vendee  and 
.Mr.  Post,  rei)resenting  the  vendors,  on  or 
about  the  20th  day  of  .\pril.  That  was 
within  the  permitted  time  of  delivery. 
The  seller  might  have  shipped  during  the 
last  days  of  March  by  sail  instead  of  by 
steam,  and  so  had  an  average  of  from  35 
to  45  days  for  the  arrival.  The  conversa- 
tion, us  detailed  by  Mr.  Post,  was  thus 
stated  :  "  Mr.  Fey  came  in,  and  said  that, 
in  eonse<iuence  of  the  price  of  old  rails  fall- 
ing from  ;|f45  a  ton  to  practically  f  2:!  a  ton, 
it  was  a  very  dilhcult  thinii;  for  him  to 
take  those  rails;  that  he  could  not  sell 
them  now  to  anybody,  and  wanted  me  to 
be  as  easy  with  him  as  1  could,  and  want- 
ed me  to  carry  the  rails,  and  give  him 
eome  rails  latjr.  I  told  him,  on  personal 
considerations. — I  had  known  him  for  a 
long  time,— that  1  would  do  everything  I 
could     to     accommodate    hiui.     1   said   I 


would  carry  the  rails  for  him,  anrl  nive 
him  some  rails  a  little  further  on  i[i  plare 
of  them,  and  perhaps  the  [irice  would  Ki-t 
better."  It  is  evident  that  this  convirHa- 
tion  on  the  part  of  .\fr.  Fey  was  basnl  up- 
on the  assumption  that  the  contract  rails 
had  arrived,  and  were  ready  tor  delivery, 
and  had  bi'en  duly  tendered.  Indeed,  Mr. 
Postwas  asked,  "In  that  conversation, at 
that  time,  did  yoti  say  anything  about 
your  rea<liness  to  deliver  the  iron  that  he 
had  bought  of  you'.'"  and  answered,"  Per- 
haps I  should  ha  ve  said  earlier  that  that 
was  the  basis  of  having  informed  him  we 
were  ready  to  do  it,  and  wanting  him  to 
pay  for  it  was  the  reason  he  wanted  us  to 
make  it  easy  for  him."  Mr.  Post  was  fur- 
ther asked.  "You  did  make  such  an  offer 
to  him  at  that  time'.'"  and  rejilied  in  the 
affirmative.  And  thus  the  basis  of  this 
hew  negotiation  was  an  nnderstaiiding 
on  both  sides  that  the  contract  rails  had 
arrived,  were  ready  for  delivery,  and  that 
payment  was  due.  I5y  tlie  contract,  the 
purchase  price  was  payable  in  part  upon 
delivery  to  the  vendee  of  "order  on  ves- 
sels,"  and  balance  "on  handing  weigh- 
master's  return."  No  such  order  or  return 
was  tendered  in  .\pril,  and  the  facts  leave 
it  doubtful  whether  thesellers  in  the  month 
of  .\i)ril  were  in  |)ossession  of  or  could 
have  tendered  either.  I?tit  assuming  that 
they  coulil  have  made  delivery  in  the  mode 
prescribed  by  the  contract,  and  that  they 
were  excused  from  the  formal  tender  of 
the  papers  by  the  act  of  Fey,  it  is  yet  ap- 
parent that  one  of  two  things  followed 
dependent  upon  the  construction  of  the 
parol  agreement.  That  is  somewhat  am- 
biguous in  its  terms,  but  itcould  have  had 
only  one  of  two  meanings.  It  must  be 
construed  as  an  agreement,  either  tliat  the 
plaintiffs,  having  set  aiiart  and  tendered 
the  contract  rails  which  had  arrived,  and 
payment  f<jr  which  was  due,  would  "car- 
ry them  "for  the  account,  and  at  the  risk 
of  Fey,  for  an  indetinite  l)Ut  reasonable 
perioii,  or  that  the  sale  of  the  contract 
rails  shoulii  be  mutually  abandoned,  and 
instead  thereof  the  sellers  should  be  per- 
mitted to  deliver,  and  the  buyer  would 
ficcept.  other  and  different  rails  from  those 
specified  in  the  written  contract.  1  do 
not  see  how,  upon  either  construction,  the 
plaintiffs  could  recover. 

They  did  not  "carry  "  the  contract  rails. 
At  the  conversation  in  April,  none  had 
been  set  apart  and  identified  as  the  prop- 
erty of  Fey  under  the  contract,  even  if  we 
concede  tliat  such  separation  and  identifi- 
cation was  within  tlie  then  power  of  the 
sellers.  They  had  not  set  apart  rails  for 
Fey  as  his,  and  as  being  carried  for  hira. 
It  "was  not  until  some  time  in  June  that 
TM  tons  of  rails  were  set  apart  as  the 
property  of  Fey.  and  that  was  done  upon 
the  reiiiiirement  of  parties  interested  with 
the  vendors,  who  "insisted  upon  it  that 
Mr.  Fey  should  take  those  rails  so  as  to 
make  tiim  pay  the  storage."-  It  is  plain 
that  up  to  that  tinu-  no  specific  rails  had 
been  set  apart  oridentitied  as  thecontract 
lu-opertv  of  Fey  upon  which  he  was  liable 
for  storage.     But  the  sellers  did  not  carry 

ti,,.   I rt    mils.     II    lliey  even    in    any 

manner  separated  oridentitied  them,  they 
sold  them  toother   parlies;  for   Mr.  Post 


148 


CLARK  V.  FET. 


says  that  lie  told  Fey  in  June.  "  Wc  were 
going  to  Hetnsiflf  five  hnndrcrt  tonsof  rails 
for  liini,  and  he  «aid  that  was  all  rip;lit." 
Tlie  500  tons  thus  set  a])art  in  tlie  month 
of  June,  to  be  carried  lor  Fey,  and  npon 
which,  therefore,  he  was  to  pay  titorage, 
were  rails  not  shipjied  in  the  contract 
months,  or  not  shown  to  have  been  so 
shipped.  When  ultimately  sold,  it  ap- 
pears from  the  bills  of  lading  that  some 
were  shipped  on  the  Ivanhoe  at  Antwerp, 
April  9,  ISSO;  some  by  the  Apotheke  Deis- 
ingat  Amsterdam,  April  2S,1>5!S0;  andsome 
by  the  Sara  Caiuo,  whose  date  of  sailing 
from  the  other  side  is  unproved.  And  it 
was  these  rails  which  the  vendee  was 
called  upon  to  accept,  and  which  were  sold 
for  his  account  on  his  refusal.  So  that 
the  sellers  did  not  carry  for  Fey  the  con- 
tract rails,  and  tender  them  for  final  ac- 
ceptance. 

The  other  view  of  the  April  conversa- 
tion dispenses  with  such  tender  of  con- 
tract rails,  and  permits  the  carrying  and 
offer  of  any  old  rails  shipped  trt)m  the 
other  side,  irrespective  of  the  date  of  ship- 
ment. But  that  is  a  new  contract,  and 
not  a  modification  of   the  old  one.     It 


substitutes  for  the  sale  of  the  contract 
iron  a  new  sale  of  different  iron,  which 
never  before  had  been  the  subject  of  a  con- 
tract. It  was  not  merely  a  change  uf  the 
date  of  delivery  and  the  time  of  payment, 
but  of  the  very  subject-matter  of  the  con- 
tract,—of  the  thing  sold  on  the  one  hand, 
and  ijurchased  on  the  other.  It  touchecl 
and  altered  the  consideration  and  sub- 
stance of  the  agreement,  instead  of  merely 
modifying  the  terms  and  manner  of  per- 
formance. The  old  contract  was  not  to 
be  performed  at  all.  The  isroperty  which 
it  stipulated  about  was  not  to  be  sold  by 
one  party  or  bought  by  the  other,  but  in- 
stead thereof,  and  in  place  of  the  iron  to 
which  it  related,  a  new  contract  for  the 
sale  and  purchase  of  different  iron  entire- 
ly. That  new  contract  was  by  parol,  and 
void  under  the  statute  of  frauds;  and  so 
neither  view  of  the  new  agreement  will 
enable  the  plaintiffs  to  recover.  The  old 
contract  was  rescinded;  the  new  one  re- 
mained wholly  executory  on  both  sides. 
We  discover  no  ground  upon  which  the 
judgment  can  be  deemed  erroneous,  and 
it  should  be  affirmed,  with  costs.  All  con- 
cur. 


\ 


OLARKSOX  V.  STEVENS. 


151 


CLARK  SON  et  al.  v.  STEVENS  et  al. 

(1  Sup.  Ct.  Rep.  200,  IOC  U.  S.  505.) 

Supreme  Court  of  the  United  States.    Nov.  27, 
1882. 

In  error  to  the  court  ot  i-hancery  of  the 
etate  of  New  Jersey. 

Wiilter  L.  Clarkfion  and  Frederick  W. 
Stevens,  for  plaintiffs  in  error.  John  P. 
StoiUton,  Atty.  (ien.,  and  Leon  Abbett, 
for  (iefeiidaiits  in  err(jr. 

MATTHR\V.S,  .T.  The  controversy  in 
tlii.s  case  uriwee  between  the  plaintiffs  in 
error,  whoare,  with  others,  heirs  at  law  of 
Robert  L.  Stevens,  tleceased,and  the  state 
of  New  Jersey,  and  involves  the  title  to 
an  uncompleted  ship-of-war  known  as  the 
Stevens  battery. 

The  claim  of  the  plaintiffs  in  error  is 
Jonnded  on  a  resolution  of  congress  ap- 
proved July  17,1S(;2,  (12  .St.OL'S,)  asfollows: 
"A  resolution  relensinf;  to  the  heirs  at  law 
of  Hobert  L.  Stevens,  deceased,  all  theriuht, 
title,  and  interest  of  the  I'nited  States  in 
and  to  Stevens  Imttery.  Uesolved,  by  the 
senate  and  house  of  representatives  of  the 
United  States  of  America,  in  congress  as- 
sembled, that  all  the  right,  title,  and  in- 
terest of  the  United  States  in  and  to  .Ste- 
vens battery  be,  and  the  same  hereby  are, 
released  and  conveyed  to  the  heirs  at  law 
of  the  said  l{ol)ert  L.  Stevens,  or  their 
legal  representatives." 

Itobert  L.  Stevens  died  in  1S.50,  having 
his  domicile  in  New  Jersey,  and  by  his  will 
constituted  his  brother,  E<) win  .^.Stevens, 
who  was  one  of  his  heirs  at  law,  and 
whom  he  appointed  one  of  his  executors, 
his  sole  residuary  devisee  and  legatee. 

Conceiving  himself  to  be  the  owner  of 
the  unfinished  vessel,  of  which  he  had  been 
In  possession  since  the  death  of  his  broth- 
er, and  claiming  as  his  residuar.v  legatee, 
Kdwin  A.  Stevens,  who  died  August  7, 
IMls,  directed,  by  his  will,  his  executors  to 
complete  it  on  his  general  plan,  at  a  cost 
not  exceeding  ?l,000,00u,  and  then  to  offer 
it  to  the  state  of  New  Jer.sey  as  a  present. 
The  executors,  after  having  exiiended 
t'.i]'.t.91.'..4!)  upon  the  ves.sel,  foiiml  that 
they  could  not  linish  it  for  the  amount  of 
nioiie.v  to  wliicli  they  were  limited,  and 
discontinuecl  the  work.  In  the  mean  time 
the  state  of  New  Jersey  had  accepted  the 
be(iuest,and  theconsent  of  congress  there- 
to was  given  in  the  following  resolution, 
niiproved  .Inly  1,  ISTO:  "A  resolution  giv- 
ing the  consent  of  congress  to  the  recep- 
tion of  a  certain  beciuest  by  the  state  of 
New  Jersey  under  the  will  of  the  late  Ed- 
win A.  Stevens.  Whereue,  Edwin  A.  Ste- 
vens, who  was  in  his  life-time  the  owner 
of  the  ship  known  as  the  Stevens  battery, 
originally  commenced  under  contract  for 
the  United  States  government,  and  upon 
the  building  of  which  large  suras  of  money 
were  spent  l)y  his  brother  and  himself,  did, 
by  his  last  will  and  testament,  (the  United 
States  having  ijreviously  relinquished  all 
rlaims  to  saiil  shij),)  leave  the  same  to  be 
finished  by  his  executors,  at  an  expense 
not  exceeding  the  sum  of  $1,000,000,  aD<l 
when  finished  to  be  offered  to  the  state  of 
New  .Jersey  as  a  present,  to  be  l)y  her  re- 
ceived and   diaposed  of  aa  the  said  state 


shall  deem  proper;  and  whereas,  doubts 
have  been  suggesterl  as  to  the  right  <if  the 
said  state  to  accept  the  said  be(|ueMt  with- 
out the  consent  of  congress,  under  the 
prohibition  of  the  tenth  section  ol  the  first 
article  of  the  constitution  of  the  United 
States;  therefore,  resolved,  bv  the  senate 
and  house  u{  representa lives  of  the  I'nited 
States  of  .\merica,  in  congress  assemiiled, 
that  the  consent  of  congress  is  hereby 
given  that  the  stateof  .New  Jersey  shall  re- 
ceive and  dispose  of  the  said  ship  accord- 
ing to  the  terms  and  conditions  of  said 
beipiest.  " 

A  bill  in  e<)uity  was  flied  In  the  chancery 
cr)urt    of    New  Jersey  by  the  executors   of 
Ed  win  A.  Stevens,  asking  for  a   construc- 
tion of  the  will   in   certain  particulars,  in- 
cluding theijiiestions  arising  upon  this  be- 
:  quest  to  the  state.     The  attorney  general 
appeared    on  behalf  of  the  state,  an<l    filed 
Ian    information    by    way    of  cross-bill,  to 
i  which  the  heirs   at  law  of   Uoliert    L.  .Ste- 
vens   Here   ma<le   parties,  as  claiming   an 
adverse   title.     A    final   deci-ce  was   made, 
establishing    the   title  of  the  state,  which 
was   affirmed    on    appeal    by  the  court  of 
:  errors  and  ap[)eals.     To   reverse  that   de- 
i  cree  the  present  writ  of  error  was  l)rought, 
the  question  presented    being  one,  whieh. 
as   it   arises   under  a   law   of   the   United 
States,   and    the  decision    thereon   ol   the 
i  state    eourt   being   in   lienial   of  the   title 
:  claimed  under  the   authority  thereof,  falls 
j  within  the  jurisdiction  of  this  court. 
I     To   determine   the   pro()er  construction 
and    legal  effect  of   the  resolution  of  con- 
gress ol  July  17,  Isfiy,  it  becomes  necess.-iry 
to  trace  from  its  origin  the  history  of   the 
I  .Stevens  batter.v. 

1      Hy  the  act   of  congress  of  April  14,  1S4:J, 
"authorizing   the  constructiim  of   a  war- 
steamer  for  harbor  defense, "  it  is  enaeted 
:  "  that  the  secretary  of  the   navy  t)e  and  he 
is   hereby  authorized    to    enter   into  con- 
j  tract  with  Robert  L.  Stevens  for   the  con- 
struction of  a  war-steamer,  sliot  and  shell 
proof,  to  be  built  principally  of  iron,  upon 
I  the   plan    of  the  said    Stevens:    provided 
I  the  whole  cost,  including    the   hull,  aruia- 
Inient,   engines,    boiler,  «nd   equipment.  In 
all  respects  complete   for  service,  shall  not 
exceed  the  average  cost   of   tlie  steamers 
I  Missouri    an<l    Mississippi;"    and    $L'.'>0,()00 
!  was  thereby  ai)i)ropriated  towards  carry- 
ing the  lawinto  effect.     .">  St.  at  Large, 472. 
I      In    pursuance   of  this  law,  the  secretary 
j  of  the  navy  entered  Felirunry  10.1843,  into 
a   contract    with    Hobert    L.   .Stevens    for 
the  construction  of  a  war-steamer  for  har- 
bor  defense,  which    recited    Ids   proposal, 
describing   the  vessel,  and   containing  cer- 
tain specifications  as  to   its   construction, 
with  a  covenant  on  his  part  that  he  would 
faithfully  build  ami  construrt   the  steamer 
conformably   to    the   plan  submit tei!,  and 
complete  tlie  same  within   two  years,  pro- 
vided congress  shor.lil    make    the  further 
aiipriqiriations  ne<-essary  tor  the  purpose 
within  a  reasonable  period. 
!      According  to  the  plan  proposed  the  war- 
steamer  was  to    lie  shot   and   shell    proof 
against  the  artillery  then  in  use  on   board 
vessels-of-wnr,    vie..  Ironi    IS-pounders    to 
fi4poiinders:     to    h"    propflled      by     sub- 
meraed  machinery,  called  Stevens' circular 
shells;  to  have  greater  S|.eed  than   any  o' 


152 


CLARKSON  V.  STEVENS. 


our  steam  vcsselsof- war  thon  l)uilt;  the 
whole  engine  to  be  out  of  the  way  of  Hliot 
trinii  any  ressel  of  an  enemy;  and  with 
otiier  specUk'ations  as  to  the  character  of 
the  material  and  the  dimensionis  and  rela- 
tions of  the  parts,  whicli  are  important  to 
lie  noticed  only  so  far  as  to  show  tliat  the 
proposed  vessel  was  to  he  constructed  up- 
on a  plan  original  and  novel,  and  with 
the  expectation  Of  results  not  previously 
Qhtained  in  any  naval  construction. 

The  secretary  of  the  navy  and  Stevens 
entered,  November  14,  IS44,  into  an  ex- 
Ijlauatory  contract,  which  recited  that 
the  stipulations  of  the  former  had  been 
found  to  be  too  loose  and  indefinite  as  to 
the  details  of  its  execution,  and  that  the 
parties  considering  tliemselves  hound  by 
so  much  thereof  as  related  to  the  dimen- 
sions, power,  ability  to  resist  shot  and 
shell,  and  other  qualities  and  arrange- 
ments of  tlie  vessel,  and  the  amount  to  lie 
paid  therefor,  entered  into  further  stipu- 
lations modifying  and  explaining  the 
same.  The  time  for  tl)e  completion  and 
delivery  of  tlie  vessel  was  extended  two 
years  from  the  date  of  the  new  contract. 
Many  additional  specifications  as  to  the 
details  of  construction  were  inserted.  It 
was  agreed  that  If  the  cost  oi  making  any 
models  or  jiatterus  used  in  the  construc- 
tion sliould  be  included  in  bills  paid  by  the 
United  States  in  the  course  of  the  work  or 
at  its  completion,  they  should  become  the 
I)rnperty  of  the  United  States. 

It  was  also  agreed  that  the  secretary 
of  the  navy  suould  ai)poiut  some  person, 
whom  Stevens  should  admit  within  his 
establishment  for  building  said  vessel, 
whose  duti'  it  should  be  to  receive  and  re- 
ceipt for,  on  account  of  the  navy  depart- 
m;!nt,  all  materials  delivered  therein  for 
constructing  said  steamer;  which  mate- 
rials, when  so  received  and  receipted  for, 
should  be  distinctly  marked  with  the  let- 
ters U.  S.  and  should  become  the  property 
of  and  belong  to  the  Uniteil  States ;  and 
it  should  be  his  further  duty  to  certify  all 
accounts,  presented  and  certified  by  Ste- 
vens, for  materials  and  labor,  which 
should  form  the  evidence  on  which  pay- 
ment should  be  made;  but  the  authority 
of  such  inspecting  officer,  it  was  under- 
stood, should  not  extend  to  a  right  to 
judge  of  the  quality  or  fitness  of  the  ma- 
terials or  workmanship,  l>ut  merely  as  to 
the  cost  thereof;  "it  being  understood," 
the  contract  proceeds,  "  that  the  quality 
and  fitness  thereof,  with  otiier  matters 
concerning  the  performance  of  the  con- 
tract, are  to  be  inspected  and  determined 
in  the  manner  hereinafter  provided  for." 

It  was  tlierenpon  further  stipulated 
that,  liefore  the  final  payment  for  tlie  said 
war-steair.er  should  be  made,  a  certificate 
should  be  rendered  to  the  navy  depart- 
ment that  in  lier  construction,  armament, 
and  equipment,  all  the  provisions  of  the 
contract  had  been  fully  performed  by  Ste- 
vens, which  certificate  should  be  given  and 
signed  by  persons  appointed  to  examine 
the  vessel.— one  by  Stevens,  one  by  the 
secretary  of  the  navy,  and.  in  case  of  disa- 
greement, a  third  by  the  other  two,— the 
decision  of  the  majority  to  be  conclusive. 
It  was  also  agreed  that  Stevens,  in  lieu  of 
other  security  for  the  faithful  performance 


of  the  contract  on  hia  part,  should  make 
to  the  United  States  a  mortgage,  which 
should  be  a  first  lien  on  all  the  lan<l,  docks, 
wharves, slips,  and  all  their  appurtenances 
belonging  to  and  embraced  within  the  es- 
tablishment at  Hoboken,  New  Jersey,  at 
which  tlie  war-steamer  was  to  be  con- 
structed, with  ample  power  to  enter  upon 
and  sell  the  same  in  case  of  failure  on  his 
](art  to  fulfill  the  contract,  or  so  mucti 
thereof  as  should  be  necessary  to  complete 
any  deficiencies  on  his  part. 

The  secretary  of  the  navy  agreed  to  pay, 
as  the  price  of  the  said  war-steamer  when 
fully  completed  and  delivered  at  the  navy- 
yard  at  Brooklyn,  in  conformity  with  the 
contract,  the  sura  of  $."JS().717.84,  the  sup- 
posed mean  cost  of  the  steamers  Missouri 
and  Mississippi,  or  any  additional  sum  that 
might  afterv\ards  be  ascertained  as  prop- 
erly included  in  that  cost,  to  be  indorsed 
on  the  contract  "as  the  price  whicli  is  to 
be  paid  for  the  said  war-steamer  when 
fully  completed,  delivered,  and    accepted." 

Payments  were  to  be  made,  from  time 
to  time,  upon  bills  certified  by  Stevens 
and  the  agent  of  the  United  States,  for 
not  less  than  .f.T.OhO  each,  and  approved 
by  the  navy  department,  until  the  sum 
of  .f.iOO.OOO  should  have  been  paid:  at 
which  time,  it  was  stipulated,  that  an  ex- 
amination should  be  had  of  the  war- 
steamer,  by  persons  to  be  appointed,  as 
before  agreed,  for  final  examination,  and 
if  a  majority  of  them  should  certify  their 
opinion  that  the  vessel  could  be  fully  com- 
pleted according  to  contract  for  the  re- 
maining balance  which  might  tlien  be 
due,  then  payments  of  further  bills  in  full 
should  continue,  not  exceeding  the  full 
j  amount  of  the  whole  agreed  price;  but 
otiierwise  the  examiners  were  reipiired  to 
certify  the  amount  which,  in  their  opinion, 
would  lie  required  to  comiilete  the  steam- 
er, when  the  secretary  of  the  navy  was 
authorized  to  withhold  from  future  pay- 
ments such  deductions  as  might  be  neces- 
sary to  meet  the  probable  excess  of  cost. 
It  was  further  provided  that  when  Ste- 
vens should  have  fully  completed  the  said 
war-steamer,  and  she  should  have  been 
duly  delivered  to  and  received  by  the  agent 
of  the  United  States,  according  to  the 
terms  of  the  contract,  the  full  amount  of 
the  price  remaining  unpaid  and  to  become 
due  when  she  should  be  fully  completed 
and  accepted,  was  required  to  lie  paid  and 
the  mortgage  security  canceled  and  re- 
turned. 

In  pursuance  of  his  contract  to  that 
effect,  Stevens  executed  and  delivered  a 
mortgage  on  the  premises  therein  de- 
scribed, being  the  basin,  dock,  shops,  etc., 
wherein  tlie  war-steamer  was  to  be  con- 
structed, conditioned  to  be  void  in  case  he 
full.v  performed  his  contract  in  relation 
thereto,  with  a  power  of  entry  and  sale, 
on  the  part  of  the  mortgagee,  in  case  de- 
fault should  be  made  in  the  completion 
and  delivery  of  the  said  war-steamer  at 
the  expiration  of  four  years  from  that 
date,  according  to  theconditions  and  stii>- 
ulations  of  the  contract,  and  out  of  the 
Iiroceeds  of  such  sale  to  retain  any  dues 
that  might  have  accrued  by  reason  of  the 
failure  to  [lerform  tliecontract,or  so  much 
thereof  as  should  be  necessary  to  complete 


CLARKSOX  V.  STEVEXS. 


1- 


any  fU'iii'iciicics  on  the  part  of  the  eaid 
Hteveiis. 

The  time  for  ihe  perfoiiiiancfl  of  the  con- 
tract was  hy  a  Htibseqiient  aureeinent  ex- 
tt'iided  for  four  vearn  from  September  ij, 
1S4S. 

Finm  .January  5,  lS4r>,  to  December  H, 
1855.  tliere  was  jiaid  out  hy  the  navy  de- 
partnient  onarcount  ol  the  vessel  $.'.1)0, (100. 

Koliert  L.  .Stevens  had,  in  addition,  e.\- 
pemied  in  its  construetioii,  of  l)is  own 
lueanH,  ijli:!,.'.;'.). 

The  act  of  AuRnst  16,  lS.")r,.  (11  St.  at 
Larj^e,  4lS, )  contains  an  approiiriation  "fur 
Stevens  war-steamer,  $M).7]T.!<5, "  l)einyr 
the  lemaindcr  of  the  contract  price,  but 
no  [Kirtion  ni  this  was  ever  paid. 

Jn  tl.'e  mean  time  Edwin  A.  Stevens 
tirolj  possession  of  the  work  upon  the 
death  of  liis  Urotlier,  as  executor  and 
residuary  legatee,  and  expended  tliei'eon, 
prior  to  Septemlier  5,  l-<.57,  of  his  own 
immey,  the  sum  of  $.S'.).lSr).a7. 

Notliiufr  furtlier  hppears  to  have  been 
done  until  the  passage  of  the  act  of  April 
17.  lMi2.  (V2  St.  at  Larse,  3S0,)  makiuR-  an 
additional  appropriation  for  the  naval 
service  for  the  year  cndiiis:  .lOne  MO,  IMili. 
Tl)e  second  section  is  as  follows:  "And  be 
itfni  thercnacted,  that  the  sum  of  §7s:(,L'!)-J. 
beiiiK  the  amount  necessary  to  Vie  provid- 
ed, as  estiniated  by  a  boai'd  appninte  I  for 
that  purpose,  to  pay  for  and  hnish  the 
Stevens  battery,  now  partially  construct- 
ed at  Hi>b(d\en,  New  Jersey,  be  and  the 
same  is  heivby  appropriated  out  of  any 
money  not  otherwise  appropriated  for 
the  immediate  construction  of  said  bat- 
tery: i)rovi(l('(l,  that  in  the  contract  for 
the  completion  of  said  vessel  it  shall  be 
stipulated  I  hut  no  part  of  the  money 
claimed  by  I^ilwin  A.Stevens  to  have  been 
heietolore  expended  l)y  him  upon  said  ves- 
sel sli.ill  lie  refunded  until  the  amount  of 
said  claim  shall  be  established  to  thesatis- 
faction  of  the  secretary  of  the  navy,  ami 
the  |)ay  ment  of  the  said  sum  shall  be  con- 
tingent upon  the  success  of  said  ves.sel  as 
an  iion-chid,  seji-jjoinjr  war-steamer,  t<i 
be  determined  by  the  president,  and  sncli 
coiilr.'ict  shall  stijndato  the  lime  within 
which  the  vessel  shall  I.e  completed:  pro- 
vided, nevertheless,  that  said  money  shall 
not  lie  expended  unle.-s  the  secretary  of 
the  navy  is  <if  opininn  that  the  same  will 
secure  to  the  public  service  an  etticient 
ste;im-!iattery." 

The  board,  whose  estimate  is  adopted 
in  this  act,  was  one  appointed  by  the  sec- 
retary of  the  navy,  under  the  autliorit.v  of 
o  joint  resolnlion  of  couRiess,  apiirovvd 
July  l'4,  iMll,  wliose  re[)ort  was  curnmnni- 
cated  to  the  house  of  representatives  in  a 
letter  of  the  secretary  of  the  navy  to  the 
speaker,  dated  .Fanuary  2,  iMil'.  Ex.  Hoc. 
No.  U:!,  H.  It.  ;{7th  Congress.  2d  Sesp.  I'p- 
on  the  ipiestion  of  the  ex|)edieney  of  coni- 
pletinn  tiie  vessel,  the  board  specif.v  six 
Jniportant  particulars,  as  amon»;  "the 
man.v  novel  characteristics  which  she 
would  possess, "in  which  she  differed  from 
ordinary  war-vessels,  and  conclude  hy 
eayiui;  :  "We  cannot  recommend  the  ex- 
lienditnre  id  in-portant  sums  of  money  up- 
on projects  of  more  than  donbtful  success 
when  |iut  into  practical  execution;  and 
therefore  we   do   not  deem  it  expedient  to 


complete  this  vessel  upon  the  plan  pro- 
posed." The  report  had  previously  stated 
"that  the  orii;inal  projectiir  of  t lie  vessel 
was  the  late  Kiiheri  1^.  Stevens.  Ks<|.,  de- 
ceased, and  that  his  brother.  Kdwin  A. 
Stevens,  Es(|.,  «  ho  tniw  proposes  to  com- 
plete it,  has  materially  chanKeil  the  plitus 
from  what  appears  to  have  been  oriKlnal- 
ly  inteniled." 

No  part  of  the  sum  approftriated  by  the 
act  of  .\pril  17,  Iscj.  was  applied  to  the 
purpose  of  completinj;  the  battery.  The 
secretary  of  tlie  navy  declined  to  do  no,  Ui 
the  exercise  of  the  discretion  contiileil  to 
him  in  the  l.ist  clause  of  the  section,  for 
reasons  set  forth  in  his  letter  to  the 
speaker  of  the  house  o(  representatives, 
dated  May  L'7,  1N02,  in  which  he  stateH 
that  he  had  taken  the  opinion  of  a  com- 
mission of  exjierts,  who  hail  reported  that 
"  the  vessel,  if  completed  on  the  plans  of 
Mr.  Stevens,  will  not  make  an  etllcicnt 
steam-battery,"  and  therefore  that  he  did 
not  feel  authorized  to  make  the  expend- 
iture unless  congress  should  so  direct. 

("onKress  thereupon  passed  the  joint  res- 
olution, approved  July  17.  iM'i-'.  on  which 
the  fdaintiifs  in  error  found  their  claim. 

Nothing  appears  to  have  been  done 
towards  res-iniin;:  work  on  the  vessel, 
from  the  date  of  the  last  previous  exiiend- 
ilnre  in  ls.")7,  until  the  death  of  Kilwln  A. 
Stevens,  on  -A uf^ust  7,  iMiS,  "lining  which 
time  it  remained  in  his  possession,  i.nd 
control.  His  will  contained  the  followiiiK 
provision:  "1  empower  n!.v  executors  to 
apply  not  exceedinsj  the  sum  of  .<1, 000, 000 
to  finish,  on  m.v  Kcnerjil  plans,  as  near  as 
may  he,  in  the  discretion  of  m.v  said  exec- 
utors, the  batter.v  known  as  'he  Stevens 
biitter.v.  and  for  the  accomplishment  of 
the  said  object  I  (rive  to  them  the  use  of 
the  dock  and  yards  and  basin  heretofore 
api'ropri.'ited  to  the  said  battery,  and  all 
the  material  provided  for  said  battery. 
When  said  battery  shall  be  linished.  1  di- 
rect m.v  executors  to  offer  the  same  to  the 
state  of  New  Jersey  as  a  jiresent,  to  be 
disposed  of  as  the  said  state  shall  deem 
proper;  and  if  not  accpted  l)y  the  said 
stale,  I  direct  my  executors  to  sell  the 
same,  and  the  proceeds  thereof  shall  fall 
into  the  residue  of  my  estate." 

In  execution  of  this  authority  the  esee- 
ut<>rs.  prior  to  February  L'7.  1n7:I,  exi)cnd- 
ed  ?'.)1'.I,'J1.'>.4".».  of  which  $l'7.:!0<.l.7'.>  was  re- 
ceived from  the  sale  nf  old  material. 

The  legislature  of  New  Jersey,  on  .Mandi 
'21,  1S71,  had  authorized  the  ap|iointment 
of  commissioners  w  ith  power  to  sell  the 
battery,  and,  in  pursuance  of  that  an- 
thorltv.  the  vessel,  r.evfr  havinj;  lieen  Jin- 
ished.was  sold  for  the  sum  ol  $7.'i.(MlO. 

The  contention  of  the  idaintiffs  In  error 
is  that  the  title  to  the  unhnlsheil  vessel 
passed,  as  the  work  proiiressed.  to  the 
L'idted  .States,  anil  became  vested,  fo- 
jjether  with  the  riuht  to  enforce  the  con- 
tract for  its  conipleliin.  and  the  swnrity 
of  the  mortcaiie.  as  aj;ainst  the  estate  of 
Kobert  I-.  Stevens,  in  his  heirs  at  law.  by 
force  of  the  joint  resolution  of  .Inly  17.  iMJl'. 

In  supiiiirt  of  the  proimsitlon  that  by 
the  biiildinii  cimtract  the  title  to  the  un- 
htiislied  ship  vested,  as  the  work  prii- 
;rresse,l,  in  tlie  rniled  States,  couiisi  I  relv 
upon  the  rule  of   cimstnu-lion    ai.nounced 


15i 


CLARKSOTSr  -v.  STEVENS. 


bv  Lord  Tenterden  in  Woods  v.  Russell, 
.-)  r.arii.  &  Aid.  042,  and  followed  by  the 
Kiinlisli  cases  of  ClarUe  v.  Spence,  4  Adol. 
&  K.  4-l.S;  Carrnthers  v.  Paine,  a  King.  270; 
Laidler  v.  JJnrlinson,  2  Mees.  &  W.  (i02; 
Wood  V.  Bell,  .5  El.  &  Bl.  3.')."),  aflirmed  in 
the  cxcheqner  ehauiber,  G  El.  &  Bl.  35.j; 
McBairi  v.  Wallace,  L.  K.  G  App.  Cas.  oS9; 
and  the  Amercan  canes  of  Moody  v. 
Brown,  34  Me.  107;  Butterworth  v.  Mc- 
Kinley,  n  Humph.  20!);  Sandford  v.  Wig- 
gins Ferry  Co..  27  Ind.  522;  Scudder  v. 
Calais  Steamboat  Co.,  1  Cliff.  370. 

This  concluKion  was  assented  to  in  the 
present  case  by  the  chancellor,  who  pro- 
ceeded to  a  final  decree,  however,  against 
the  i)laintiff8  in  error,  on  the  ground  that 
the  title  of  tlie  United  States  passed  by 
the  resolution  of  .July  17,  1SG2,  not  to  the 
heirs  at  law  of  Kobert  L.  Stevens  for  their 
own  benefit,  but  to  or  for  the  benefit  of 
Edwin  A.  Stevens,  the  residuary  legatee. 
The  court  of  errors  and  apjieals  while 
atfirming  his  decree,  took  a  different  view, 
and  decided  that  the  title  of  the  ship  never 
vested  in  the  United  States  as  owner,  fol- 
lowing itsown  previousdecision  in  Elliott 
V.  Edwards,  35  N.  .1.  Law,  2(i5;  S.  0.  3G  N. 
J. Law, 449;  the  New  Yorkcaseof  Andrews 
V.  Durant,  11  N.  Y.  35,  and  supported  by 
the  decision  in  Williams  v.  Jackman,  10 
Gray,  514,  in  which  the  rule  is  stated  by 
Bigelow,  C.  J.,  as  follows:  ''Under  a  con- 
tract for  supplying  labor  and  materials 
and  making  a  chattel,  no  property  passes 
to  the  ven(lee  till  the  chattel  is  completed 
and  delivered,  or  ready  to  be  delivered. 
This  is  a  general  rule  of  law.  It  must 
prevail  in  all  cases,  unless  a  contrary  in- 
tent is  expressed  or  clearly  implied  from 
the  terms  iif  the  contract." 

The  rule  first  introduced  in  Woods  v. 
Russell,  5  Barn.  &  Aid.  942,  as  interpreted 
by  the  English  courts,  according  to  Clark 
V.  Si)ence,  4  Adol.  &  E.  44S,  is  "founded  on 
the  notion  that  provision  for  the  pay- 
ment, regulated  by  particular  stages  of 
the  work,  is  made  in  the  contract  with  a 
view  to  give  the  purchaser  tlie  security 
of  certain  portions  of  the  work  for  the 
money  he  is  to  pay,  and  is  equivalent  to 
an  express  provision  that  on  pa^'ment  of 
the  first  installment  tlie  general  property 
in  so  much  of  the  vessel  as  is  then  con- 
structed shall  vest  in  the  purchaser." 
This  dictum  from  Woods  v.  Itussell,  ac- 
cording to  Benj.  Sales,  246,  (2d  Ed.,)  was 
deliberately  adopted  as  a  rule  of  construc- 
tion by  which,  in  similar  shipbuilding  con- 
tracts, the  parties  are  held  to  have,  by 
implication,  evinced  an  intention  that  the 
property  shall  pass,  notwithstanding  the 
general  rule  to  the  contrary,  and  adds; 
"The  law  thus  established  has  remained 
unshaken  to  the  present  time." 

Neverthelp.ss,  in  Wood  v.  Bell,  5  El.  &  Bl. 
791,  Lord  Campbell,  C.  J.,  said:  "  When  a 
man  contracts  with  another  to  make  any 
article  for  him  for  a  given  price,  the  gen- 
eral rule  is,  in  the  ab.>-ence  of  all  circum- 
stances from  which  a  contrary  conclusion 
may  be  inferred,  that  no  property  passes 
in  the  chattel  until  it  be  completed  and 
ready  for  delivery.  On  the  ottier  hand, 
where  a  bargain  ismadefor  thepiirchaseof 
an  existing  ascertained  chattel,  the  gen- 
eral rule,  in  the  same  absence  of   op[)osiiig 


circumstances,  is  that  the  property  passes 
immediately  to    the  vendee;  that   is,  that 
there  is  at  once   ^^   complete  bargain  and 
sale.    But  these  general  rulesare  both  and 
ec|iially founded  on  thepresumed  intention 
of  the  parties.     If.  in    the   lirst,  there  are 
attendant   circumstances  from   which  the 
intention    may  be  inferred    that  the  prop- 
erty  shall    pass    in    the    incomplete    and 
growing   chattel   as   the   manufacture   of 
it  proceeds,  or  even   in   ascertained    matt*, 
rials  from  which  it  is  to  be  carried    to  per- 
fection, that  intention  will  lie  effectuated; 
and,  equally  in  the  latter.if  it  appear  that 
theparties  intended  to  posti)onethe trans- 
fer of  the  proper!}'  till  the   payment  of  the 
price  oi  the  performance  of  any  other  con- 
Ulition,   such    intention  will    be   upheld   in 
Ithecourts  of  law."     "This   principle,"  he 
added,  "we   believe   to    l)e    well   settled;" 
and    referring   to    the  eases   of   Woods   v. 
i  Russell,  Clark  v.   Spence,   Laidler    v.  Bur- 
llinson,and  others  cited   in   argument,  he 
I  remarked  that  "previous   decisions,  there, 
[fore,  are  mainly  useful  as  serving  to  guide 
'  our  judgment  in  estimating  the  weight   of 
I  circumstances  as   evidence   of   intention;" 
and  concluded  by  saying:    "Still   it   must 
I  be  remembered,  after  all,    that    what    we 
I  have  to   determine  is  a  question   of  fact, 
!  namely,  what,  upon    a   careful  considera- 
I  tion    of   all  the  circumstances,  we   believe 
to  have  been    the  contract  into  which  the 
'  partie.s  have  entered." 

It  is,  perhaps,  worthy  of  remark  that 
this  passage  from  the  judgment  of  Lord 
Campbell  has  by  the  editors  of  .\bb.  Merch. 
Shijis  &  Seamen,  4,  been  incorporated  into 
the  text  of  that  treatise. 

The  courts  of  this  country  have  not 
adopted  any  arbitrary  rule  of  construc- 
tion as  controlling  such  agreements,  but 
consider  the  question  of  intent,  open  in 
every  case,  to  be  determined  upon  the 
terms  of  the  contract,  and  the  circum- 
stances attending  the  transaction,  (1 
Pars.  Shipp.  &  Adm.  03;)  and  such  seems 
to  us  to  be  the  true  principle. 

Accordingly,  we  are  of  opinion  that  the 
fact  that  advances  were  made  out  of  the 
purchase  money,  according  to  the  con- 
tract, for  the  cost  of  the  work  as  it  pro- 
gressed, and  that  the  government  was 
authorized  to  i-e(juire  the  presence  of  an 
agent  to  join  in  certifying  to  theaecounts, 
are  not  conclusive  evidence  of  an  intent 
that  the  projierty  in  the  ship  should  vest 
in  the  United  States  prior  to  final  delivery. 
Indeed,  in  reference  to  the  latter  circum- 
stance, it  is  noticeable,  as  indicating  a  con- 
trary intentirin,  that  the  authority  of  the 
ins|)ecting  officer  was  expressly  limited,  so 
that  it  should  not  extend  to  a  right  to 
judge  of  the  quality  and  fitness  of  the  ma- 
terials or  workmanship;  sudi  matters, 
and  all  others  concerning  the  performance 
of  the  contract,  being  reserved  for  deter- 
mination after  the  completion  of  the  work, 
as  a  condition  of  acceptance  and  final 
payment. 

.Much  stress  is  laid,  in  argument,  upon 
that  provision  of  the  contract  which  re- 
(|uired  all  iDaterials  received  at  the  yard 
for  use  in  constructing  the  steamer,  to  l)e 
dintinctlv  marked  witli  the  letters  U.  S,, 
and  declare<l  that  they  should  become  the 
property    of   and    belong    to    the    United 


CLAEKSON  V.  STEVENS. 


155 


StatoH.  But  it  does  not  follow,  because 
the  inntorials  provided  for  tliat  use  were 
ilec'hired  to  be  tlio  proi)ertj'  of  tlie  United 
StiitcH,  It  was  intciuied  that  they  should 
remain  ko  after  becoming  part  of  the 
Htructuro.  Such  a  precaution  miKht  well 
liavL'  been  sujiKested,  as  a  security  againHt 
a  (livorHion  o(  the  niaterialH  to  any  unau- 
lliorizcd  iiKc,  or  to  preserve  them  to  the 
United  StaleH,  in  case,  l)y  reaHon  of  the 
failure  of  the  work  or  from  any  other 
cauHe,  they  Hhould  not  be  used  in  the 
ve.ssel.  Indeed,  an  is  remarked  by  the 
learned  iiid^e  who  delivered  the  opinion 
of  tlie  court  of  errors  and  appeals  in 
this  case,  the  exiiress  <ieclaration  that 
defined  the  property  In  the  unused  iiiate- 
riala,  seems  to  exclude  the  implication 
sought  to  be  raised  as  to  the  proi)erty  in 
the  unfinished  ship;  for  the  inference  is 
obvious,  from  the  |)articularity  of  such  a 
provision,  that  the  larger  interest  would 
n(jt  lie  left  to  more  intendment. 

There  are  two  other  provisions  of  the 
contract,  which  seem  to  us  conclusive  of 
the  question,  and,  in  a  sense,  adverse  to 
the  construction  of  the  plaintiffs  in   error. 

The  first  of  these  is  that  wliich  requires 
Stevens,  in  lieu  of  other  security,  for  his 
faithful  performance  of  the  contract,  lo  ex- 
ecute and  deliver  a  niortgase  on  nil  the 
land,  docks,  wharves,  slips,  and  all  their 
appurtenances  belon^iUH;  to  and  em- 
braced within  the  estalilishment  at  IIo- 
boken.  New  Jersey,  at  which  the  war- 
steamer  was  to  be  constructed,  with 
power  to  the  United  States  to  enter  upon 
and  sell  the  same  In  case  of  his  failure  to 
fnllill  his  part  of  the  contract,  or  so  much 
thereof  as  should  be  necessary  to  complete 
any  deficiencies  on  his  part. 

The  taking  of  this  security,  as  an  in- 
demnity to  the  United  States,  assumes  the 
anticipated  ijossibillty  thai  the  failure 
misht  be  total,  so  that  the  vessel,  when 
offered  for  delivery,  miffht  be  altoj^ether 
rejected.  And  it  does  not  detract  from 
the  force  of  this  conclusion,  that  the  al- 
ternative provides  for  completing  de(icie;i- 
cics,  if  they  sliould  prove  to  be  remedia- 
ble; for,  in  that  case,  the  United  Stales, 
at  its  option,  niijilit  accept  the  vessel, 
thus  bocomins  invested  with  the  title,  and 
make  (j;ood  its  deficiencies  out  of  this  se- 
curity. 

The  other  feature  of  the  contract,  which 
corroborates  this  view,  is  that  which 
provides  that  final  paymentfor  thesteam- 
er  shall  be  made  only  upon  the  certificate 
of  examiners,  to  be  appointed  for  that 
purpose,  that  in  her  construction,  arma- 
ment and  equipment,  all  the  provisions  of 
the  contract  have  l)een  fully  performed 
and  completed,  which  requires  that  the 
steamer  shall  be  fully  completed  and  de- 
livered at  the  nnvy-yar<l  at  Brooklyn,  ami 
fixes  the  gross  amount  which  is  to  lie  paid 
for  it  when  fully  completed,  delivered,  and 
aecepted.  The  fact  that  advances  are  to 
be  made  in  the  mean  time  is  expressly 
slated  to  be  in  consideration  of  the  se- 
curity to  be  given  by  Stevens  for  the  faith- 
ful performance  of  his  contract,  and  that 
compensation  for  his  time  and  services 
must  be  wholly  deferred  until  the  final 
completing  and  delivery  of  the  vessel. 

It  is  thus  apparent,  as  we  think,  from 


these  stipulations,  that  the  vessel  was  In 
all  respects  to  be  at  therisk  of  the  builder, 
until,  upon  its  completion,  the  Unliel 
States  should  accept  it,  upon  iinal  exam- 
ination and  cerliHcate.  as  conforming  in 
every  particular  with  the  requirements  of 
the  contract,  an<l  answering  the  descrip- 
tion and  warranty  of  an  eHiclent  steam- 
battery  for  harbor  defense,  shot  and  shell 
proof. 

And  looking  at  the  situation  of  the  par- 
tics  and  theobjects  they  must  have  had.  In 
view,  all  doubt  is  removed  as  to  their  in- 
tention. Stevens  was  an  ardent  and  san- 
guine inventor,  who  hail  convinced  him- 
self that  his  unique  design  of  a  naval 
structure  was  practical)le  and  of  great 
value,  and  that,  it  adopted,  it  would  prove 
to  be  of  immense  pul)lic  utility,  lie  sue- 
eeeded  also  in  persuading  the  government 
to  make  the  experiment  and  give  him  the 
op[)ortunity  of  realizing  his  theories.  But 
it  was  understood  to  be  merely  an  experi- 
ment, and  evidently,  by  the  navy  depart- 
ment, naturally  conservative  ami  inclined 
to  adhere  with  some  tenacity  to  Its  own 
traditions,  regarded,  at  best,  as  of  very 
doubtlul  success.  The  steamer  when  built 
was  toconstitntea  part  of  thenavaiestab- 
I  is  h  meat  of  the  United  States,  fan  It  be  sup- 
posed that  this  was  to  take  place  except 
upon  condition  that,  after  completion  and 
suflicient  examination,  it  shotild  be  found 
fit  for  the  service?  This  Is  the  view,  as  it 
seems  to  us,  which  congress  by  its  legisla- 
tion, and  tlie  navy  department  in  all  its 
dealings  with  the  subject,  constantlj*  en- 
tertaiiieil  and  acted  upon,  and  which  both 
Robert  L.  Stevens  and  his  brother,  Kclwin 
.\.  Stevens,  did  not  hesitate  to  accept;  the 
latter  not  shrinking  from  n  further  invest- 
ment of  .$1,0(10, (lOD  in  an  enterprise  which 
he  still  cherished  wit.li  conlideiice  of  ulti- 
mate success,  after  it  had  become  to  al- 
most every  one  else  a  demonstrated  fail- 
ure, and  after  the  government,  for  whom 
it  waa  originally  intended,  hod  refused  to 
it  all  further  subsidies. 

We  liiid,  therefore,  that  on  July  17.  ISti:?, 
the  date  of  the  joint  resolution  of  con 
gress,  under  which  the  plaintiffs  in  error 
make  tlieir  claim,  the  l-nited  States  had 
no  title  to  the  Stevens  battery:  but  that 
the  property  in  it  had  continued  in  Rob- 
ert L.  .Stevens  until  his  death,  and  passed 
by  Ills  will  to  Edwin  A.  Stevens,  as  resid- 
uary legatee.  It  follows  that  it  (lid  not 
pass  to  the  heirs  at  law  of  Robert  L.  Ste- 
vens by  virtue  of  the  joint  resolution. 

It  is  urged,  in  argument,  that,  if  the 
right  to  the  vessel  Itself  diii  not  pass,  then 
the  joint  resolution  must  be  construeil  as 
a  transfer  to  the  heirs  of  Robert  B.  Ste- 
vens of  the  right  of  action  of  the  United 
States  to  recover  against  his  estate  dam- 
ages for  his  nonperformance  of  his  con- 
tract, together  with  the  securities,  by 
wuvof  mortgageand  lien, it  held  asindem- 
nity.  We  see  no  ground  for  a  construc- 
tion that  leads  to  so  remarkalile  a  result. 
The  plain  meaning  of  the  resolutitin  is  lim- 
ited toa  relinquishuient  on  the  part  of  the 
United  States  of  any  interest  it  might  be 
supposed  to  have  in  the  vessel.  In  which 
the  heirs  of  Robert  B.  Stevens  are  men- 
tioned, probably,  because  it  was  with  him 
that    the  builUiujj  contract   was    made; 


156 


CLARKSON  V.  STEVENS. 


ami  if  it  could  operate  at  all  as  a  release, 
would  be  to  them,  for  tlie  benefit  of  those 
who,  by  law,  hail  become  his  successors 
in  the  title;  and  that  release  would  neces- 
sarily convey  with  it,  as  an  Incidwnt,  an 
extin^rnlahnient  of  the  obligation  of  the 
contract  for  constructicjn,  and  all  the  se- 
curities taken  for  its  iierformanee.  It 
was,  in  effect,  and  was  doubtlesM  inteiuleil 
as,  a  <)eclara tion  on  the  part  of  the  United 
States,  for  the  benefit  of  ivhom  it  mifiht 
concern,  of  its  entire  abaniliininen t  of  all 
further  connection  with  the  battery  and 
the  contract  for  its  construction.  The 
subsequent  assent  on  the  part  of  conjcress 


to  its  acceptance  by  the  state  of  New  .Jer- 
sey, as  a  bequest  from  Edwin  A.  Stevens, 
while  it  conld  not  operate  to  affect  any 
rights  vested  in  the  interval,  is,  at  least,  a 
legislative  interpreta tio!)  of  its  i)revious 
release.  This  resolution  ex[)ressly  recites 
that  Edwin  A.  Stevens  was  the  owner  of 
the  battery  in  bis  life-time,  and  is  scarcely 
more  explicit  in  the  recoKuition  of  his  lilla 
than  was  the  conduct  of  all  tlie  parties, 
including-  the  present  i)laintiffs  in  error. 

We  are  of  opinion,  for  the  reasons  stat- 
ed, that  there  is  no  error  in  the  decree 
coniplained  of,  and  it  is  accordingly  af- 
firmed. 


CODDIXGTON  v.  GODDARD. 


ir,9 


C0DUI.\'(;T0N'  ot  n\.  V.  GODDAUD. 

{IG  Gray.  4:5G.) 

Supreme  Judicial   Court  of  Massachusetta. 
Nov.,  ISGO. 

Action  of  contract  to  recover  (InmnucM 
f(jr  n(jt  ilclivcriiiR  tno  hiinclred  tlioUHJind 
poiinils  of  copper  alleged  to  liave  hccn 
Kolil  by  tlie  ileremlant  to  tlit-  pliiinliff. 
Trlnl  and  vcrdirt  for  tlic  pi'.iintlff  bifort 
Alerrick,  J.,  who  rei)orted  tlii'  case  to  the 
full  court,  in  Hubstance  aH  folloWM: — 

CharlcM  (."antcrl)ur.v,  called  as  a  witness 
fur  the  [ilaiMtiffs.  te.-itilied  that  he  was  a 
raerclumdise  broker;  that  on  the  lit h  of 
Ucceiiiber,  is.'iG,  acting  under  iiistniitioiiK 
contained  in  a  telegraphic  dcsiialc!)  from 
tlie  iilaintiffs,  raerchaiitH  in  New  York, 
which  ne  receivid  between  two  and  three 
o'clock  in  the  afternoon,  he  called  at  the 
defendant's  place  of  business  in  I'oston, 
and  iK.t  findiii};  him  there,  followed  hini 
to  his  house,  where  he  had  an  interview 
with  him,  and  staled  lohnn  the  plaintiff's 
offer  to  bay  three  hundred  thousand 
pounds  of  copiier,  at  twenty-four  and  a 
quarter  cents  per  pound,  on  a  credit  of 
nine  months,  with  satisfactory  pajier,  and 
deliverable  on  board  a  vessel  in  Itoston 
bound  for  New  York,  the  seller  to  pay 
trelKht  to  New  Y'ork,  and  the  buy?r  to 
pay  the  ir)siirance;  that  the  defendant 
asked  if  tlie  steamer,  which  had  that  day 
arrived  in  New  Y'ork,  brouKl't  intelligence 
of  any  advance  in  the  |)rice  of  copper  in 
Europe;  to  which  the  broker  replietl, 
"  None  that  I  know  of;"  and  the  defend- 
ant, after  a  moment's  hesitation,  said 
that  he  would  sell  to  the  plaintiffs  two 
luindred  thousand  pounds  of  copper  on 
the  terms  proijosed.  reserviny;  the  riy:lit 
to  aild  one  hundred  thousand  <;n  the  next 
day  if  he  should  then  elect  to  do  so;  that 
the  broker  nr«ed  him  to  sell  the  whole  of 
the  three  hundred  thousand  pounds  then, 
eayiufi  that  the  purchase  was  made  for 
exportation,  and  would  take  that  ((nan- 
tity  out  of  this  market;  but  tliedefendant 
8uid  he  would  not  do  differently  from 
what  he  had  proposed;  and  the  broker 
then  said,  "  Well,  if  that  is  the  ultimatum, 
if  is  a  sale, "  and,  returninj;  to  his  oltice, 
communicated  to  the  plaintiffs  by  tele- 
graph what  he  had  done,  informing  them 
that  he  should  write  the  particulars  by 
the  n^xt  mail ;  which  he  did  ;  and  made  a 
memorandum  in  his  books  of  the  trans- 
action, accordin.a;  to  his  usual  custom. 

This  memorandum  was  on  a  i)aKe  of  a 
book  headed,  "Boston.  December,  IS.'ji;." 
and  was  in  the  foUowinK  terms:— 

"9tli.  W.  \V.  (Joddard  to  T.  U.  Coddinu- 
ton  &  Co.  'JUO.IIOO  pounils  Chill  pifj  coi)per, 
24)^  a  i)  mos.  from  delivei'y,  f.  o.  I),  iiacket 
here  for  N.  Y'.,  seller  paying  freight,  and 
buyer  paying  insurance  to  N.  Y.  To  be 
!•(>  per  cent  pure  copi)er,  and  paper  satis- 
factory to  seller. " 

The  broker  testified  that  in  this  inemo- 
rnnduni  the  fijiures  denoting  the  iiuantity 
were  written  in  peiicil.  in  order  to  facili- 
tate alteration  in  case  the  defendant 
Should,  as  he  had  a  right  to  do,  elect  to 
deliver  a  larger  nuantity.  No  sale  note 
(M-  letter  relating  to  the  sale  or  entry  was 
sent  bv  tlie  broker  to  the  ilefenilant. 


The  plaintiffs  admitted  that,  before  send- 
ing their  telegr,.phi<-  despatth  to  the 
broker  on  the   '.»th    of    I>i'cemlier.  tliey  had 

receive  1  intelligence  by  the  stea r,  which 

arrived  that  morning  in  New  York,  of 
an  ailvanceof  a  penny  a  pound  in  the 
price  (if  copper  In  i;urope;  il.atthis  intel- 
ligence would  have  been  of  material  im- 
portance to  the  defendant  i;i  determining 
whetlier  to  sell  uiion  the  ti'rnis  proposed: 
and  that  if  it  had  been  known  to  him  he 
Would  not  have  agreeil  to  sell  his  cojiper 
upon  those  terms;  an<l  that  they  <lld  nor 
comiiuiiiirate  it  to  tliedefendant  or  to  the 
bi-oler  until  after  the  completion  of  the 
bargain.  Tlie  defendant  conceded  that 
the  brokei',  at  the  time  of  his  interview 
with  liiiii,  was  ignorant  of  the  arrival  in 
New  York  of  intelligence  of  tin  advance  in 
the  price  of  copper;  and  diil  not  contend 
that  the  broker  h;id  any  fraudulent  de- 
sign or  pur|)(ise  in  making  the  entry  in  bin 
books,  or  fraudulently  oa.it teil  in  the  en- 
try any  of  the  terms  of  the  bargain  agrec<l 
upon.  Itut  th(>  defe.'idant  ilid  contend 
that  by  reason  of  the  broker's  answer 
that  no  such  irilelligence  had  arrived  to 
his  knowledge,  and  of  the  omission  of  the 
plaintiffs  to  communicate  that  intelligence 
to  the  deffiidant,  the  bargain  made  by 
him  with  the  broker  as  the  agent  of  the 
tilaintiffs  was  not  binding  upon  him. 
.\nd  thlH  objection  was  reserved  for  the 
determination  of  the  full  court,  the  par- 
ties agreeing  that  if  for  this  reason  the  ac- 
tion could  not  be  maintained,  the  veicliet 
shoulil  be  set  aside  ;uiil  a  nonsuit  entered. 

The  defendant,  being  called  as  a  wit- 
ness, tcstilled  tha  t  in  his  interview  with 
the  broker  he  said  that  he  wiiuld  sell  to 
the  plaintiffs  two  hundred  thonsanil 
pounds  of  copiier  in  case  no  intelligence 
had  been  received  by  the  steamer  of  any 
advance  in  the  price  of  the  article  in  Ku- 
rope,  reserving  the  right  to  add  one  hun- 
dred thousand  pounds  thenextday  on  the 
same  terms  at  his  option.  And  he  con- 
tended that,  if  there  was  any  verlial  con- 
tract f'lr  the  sale  of  two  hundre.l  thou- 
sand pounds  ol  copper,  it  was  U|ion  thiH 
condition,  and  upon  the  further  condition 
that  the  copper,  if  s'>ld  an<I  delivered, 
should  be  exported  liy  the  plaintiffs,  and 
therefore  the  plaintiffs  could    not    recover. 

Tliedefendant  also  contended  that  the 
entry  in  the  broker's  bonks  was  not  a  suf- 
ficieut  meniorandum  in  writing  to  take 
the  case  out  of  the  statute  of  frauds ;  be- 
cause no  authority  was  shown  in  the 
broker  to  sign  the  niemornnduni  in  bis 
behalf  or  in  behalf  of  the  |ilaintlffs;  be- 
cau.se  it  was  not  intended  liy  the  broker, 
w  hen  he  maile  it,  as  a  complete  and  llnal 
statement  of  the  bargain  maile;  because 
it  did  not  state  all  the  material  lernis  of 
the  bargain;  because  it  was  not  signed 
as  required  by  the  statute;  and  because 
the  broker  was  not  authorized  by  tliede- 
fendant to  tnake  thebargain  soentered  by 
liim. 

Hut  the  judge  ruled  tha t  if  '  anterbury 
was  a  inerchaiidise  broker,  and  that  was 
liiiDWu  to  the  parties,  and  tlicy  were 
dealing  with  him  in  tills  trnnsacllon  In 
his  caiiacitv  of  broker,  and  made  a  con- 
tract through  him  lor  the  piirchnse  nnd 
sale   of    two  liundrcd  thousand  pounds  of 


160 


CODDINGTON  ».  GODDARD. 


copper,  tliis  gave  liini  authority  to  bind 
tliein  l)()tli  by  mnkiiij;  a  meniorandum  of 
the  contrnct  iti  writing;,  and  siKiiinp;  it  in 
their  behalf  respectively ;  that  the  inenio- 
raiicliini  In  his  i)()ok  was  snfTicietit  in  form 
Id  l)iuil  the  parties,  if  he  had  authority  to 
make  and  sitrn  it  for  tliem:  that  if  lie 
dill,  in  fact,  make  the  entry  in  his  book  as 
and  for  a  complnte  note  or  memorandum 
of  tlie  contract  of  sale  made  by  the  par- 
ties throMRh  him,  such  memorandjm  was 
conclusive  evidence  of  the  terms  of  thecon- 
tract,  and  was  to  be  considered  and  treat- 
ed in  all  respects  as  it  it  was  a  written 
contract  signed  by  the  parties  themselves; 
that  it  was  in  its  terms  a  |)erfectand  com- 
plete statement  of  a  contract,  and  ca- 
l)al)le  of  a  clearand  intelligible  exposition, 
and  therefore  parol  evidence  was  inad- 
missible to  contradict  or  vary  tl'.e  terms 
of  it;  and  that  even  if  the  defendant  did 
in  his  verbal  contrnct  with  (Janterbnry 
make  the  sale  upon  siRdi  conditions  as  he 
cimtended,  he  could  not  avail  himself  of 
either  of  those  conditions,  because  they 
were  not  contained  or  expressed  in  the 
memorandum.  To  these  rulings  the  de- 
fendant alleged  exceptions. 

f.  A.  Welch  and  E.  Bangs,  for  plaintiffs. 
C.  li.  Goodrich  and  O.  G.  Peabody,  for  de- 
fendant. 

BIGELOW,  C.  J.  Wecan  see  nothing  in 
the  facts  disclosed  nt  the  trial,  which 
shows  an.v  misrepresentation  or  conceal- 
ment in  procuring  the  assent  of  the-  de- 
fendant to  the  contract  of  sale  set  out  in 
tlie  declaration.  Assuming  the  rule  of  law 
to  be,  as  stated  by  the  counsel  for  the  de- 
fendant, that  a  contract,  made  by  an 
agent  in  liehalf  of  a  vendee,  his  princii)al, 
into  which  the  vendor  was  induced  to  en- 
ter liy  a  representation,  which  was  false 
within  the  knowledge  of  the  [)rincipal. 
but  not  so  within  that  of  the  agent,  would 
be  void  on  the  ground  of  fraud,  we  do 
not  think  the  evidence  brings  the  case  at 
bar  within  this  principle.  The  broker  did 
not  make  any  representation  or  state- 
ment in  behalf  of  the  plaintiffs  or  as  their 
agetit.  He  was  not  asked  concerning 
their  knowledge  of  any  fact  or  circum- 
stance bearing  on  the  contract  which  he 
was  endeavoring  to  negotiate  with  the 
defendant,  it  is  true  that  he  was  inter- 
rogated concerning  a  material  fact,  but 
the  question  was  addressed  to  him  indi- 
vidually and  sought  to  draw  out  onl,v  his 
own  personal  knowledge,  and  not  that  of 
his  [irincipals  upon  the  subject  to  which  it 
related.  Clearly  it  was  so  understood  Ije- 
tween  the  parties.  The  answer  given  to 
it,  which  the  defendant  received  at  the 
time  as  satisfaetory,  was  expressly  con- 
fined to  the  broker's  own  individual  in- 
f(}rniation,  and  did  not  either  afhrm  or 
('[i^uy  anyfact  a1)solutely,or  import,  either 
directly  or  by  imi)lication,  any  knowledge 
of  it  on  the  part  of  the  plaintiffs.  This 
answer  was  strictly  true,  and  did  not  tend 
in  any  degree  to  deceive  or  mislead  the 
defendant.  It  is  not  a  case,  therefore, 
where  an  agetit  made  any  absolute  repre- 
sentation of  a  material  fact  which  he  he- 
lieved  to  be  true,  though  it  was  in  fact 
falseand  known  to  be  so  liy  his  [irincipals. 
8uch  would  have  been    the   aspect   of    the 


case,  if  he  had  stated  to  tlie  defendant,  In 
answer  to  his  inquiry,  that  the  steamer 
which  had  that  day  arrived  in  New  York 
had  brought  no  intelligence  of  any  ad- 
vance in  copner.  Then  the  cases  in  which 
the  authority  of  Cornfoot  v.  Fowke,  6  .M. 
&  \V.  358,  has  been  questioned  and  denied, 
would  have  been  applicable.  Fuller  v. 
Wilson,  2  (jale  &  Da  v.  4U0,  3  <Jale  &  Da  v. 
r)7(),  3  Ad.  &  El  N.  S.  5S,  68,  lOOi);  Fitzsim- 
mons  V.  .Toslin,  21  Verm.  129.  But.  as  the 
case  stands,  upon  the  proof  there  was  no 
affirmation  or  denial  by  the  agent  of  the 
existence  of  this  fact  or  even  of  the  know  I- 
edgeof  bis  principals  concerning  it.  There 
w-as  nothing  more  than  a  statement  that 
no  such  fact  was  known  to  him.  This  is 
admitted  to  have  ijeen  true;  clearly  then 
there  was  no  misrepresentation  or  con- 
cealment by  which  the  contract  can  be 
avoided.  There  can  be  no  doubt  that  the 
broker,  if  he  acted  as  the  agent  of  both 
[larties  in  completing  the  contract  of  sale, 
was  empowered  to  do  all  that  was  neces- 
sary to  make  the  bargain  valid  and  bind- 
ing in  law.  For  this  purpose  he  had  au- 
thority to  make  the  requisite  memoran- 
dum to  satisfy  the  statute  of  frauds.  IJev. 
Hts.  c.  74.  §  4.  It  is  not  denied  that  this 
memorandum  may  well  be  made  in  the 
liook  of  a  broker.  Indeed,  such  entry  may 
be  resorted  to  as  the  original  evidence  of 
the  contract,  even  when  btiught  and  sold 
notes  of  the  bargain,  differing  from  each 
other,  have  been  delivered  to  the  parties. 
Sievewright  v.  Archibald,  17  Ad.  &  EI.  N. 
S.  102,  10!». 

But  it  is  objected  that  themtmorandura 
made  by  the  broker  in  the  present  case 
was  insufficient  to  take  thecase  out  of  the 
operation  of  the  statute,  because  it  does 
not  show  who  were  the  vendor  and  ven- 
dee of  the  merchandise.  This  would  be  a 
fatal  objection  if  it  was  well  founded;  for 
although  a  memorandum  of  this  nature 
may  lie  very  brief,  it  must  nevertheless 
show  with  reasonable  certaint.v  who  were 
the  parties  to  the  contract,  and  the  terms 
of  the  sale,  so  that  they  may  appear  from 
the  writing  itself.  But  in  the  present  case 
the  entry  Is  perfectly  intelligible  and  free 
from  doubt.  If  it  is  read  with  reference  to 
the  book  in  which  it  is  made,  as  an  entry 
by  a  broker  in  the  regular  course  of  his 
business  as  an  agent  of  third  parties  for 
the  purchase  and  sale  of  goods,  it  clearly 
indicates  a  sale  from  defendant  to  the 
plaintiffs.  It  is  susceptible  of  no  other  in- 
terpretation. 

It  is  alsoobjected  thatthemeniorandum 
is  deficient,  because  it  does  not  state  the 
amount  tor  which  insurance  was  to  be  pro- 
cured, nor  for  whose  benefit,  and  because 
it  contains  no  stipulation  concerning  the 
modeor  place  in  which  the  assaying  of  the 
copper  was  to  be  had,  in  order  to  ascertain 
its  purity.  The  answer  to  these  otijec- 
tions  is  that  the  meniorandum  states  with 
accuracy  the  terms  of  the  contraet  as  tes- 
tified to  by  the  broker,  and  that  there  was 
no  proof  at  the  trial  that  there  was  any 
agreement  made  concerning  the  ])articc- 
lars  of  the  bargain  which  are  now  alleged 
to  be  omitted. 

Nor  does  it  affect  the  validity  of  the  mem- 
orandum, that  the  broker  did  not  incluile 
in    it    the  stipulation    made  by  the  defend- 


CODDINGTOX  v.  GODDARD. 


161 


ant,  that  lie  should  have  the  right  to  adil 
to  the  Hale  one  hundred  thousand  pounds 
of  copper  the  next  day.  This  was  a  wholly 
sc|)arate  and  independent  agreement, 
which  in  no  way  affecteil  tho  sale  actually 
made,  and  which  could  not  be  properly  en- 
tered in  the  book  of  the  broker,  uiilesH  it 
had  ripened  into  a  hale  by  the  election  of 
the  defendant  on  the  next  day  to  sell  tlic 
additional  quantity  to  the  plaintiffs.  lint 
he  made  no  such  election,  anil  there  was 
therefoi-e  no  contract  as  to  that  porticju 
of  the  copper  of  which  the  broker  was  em- 
powered to  make  a  memoranilum. 

The  remaining:  objection  to  the  suffi- 
ciency of  the  entry  in  the  book  as  a  mem- 
orandum within  the  statute  is  that  it  was 
not  duly  sisned  by  the  broker  or  the  par- 
ties. We  know  of  no  case  in  w!;ich  it  has 
been  held  that  the  signature  of  the  name 
of  the  ajient  throUKh  whom  the  contract 
is  netiotiated  should  appearin  the  writing- 
It  is  sufficient  if  the  names  of  the  parties 
to  be  charjieil  are  properly  inserted,  either 
by  themselves  or  by  some  persons  duly 
authorized  to  authenticate  the  document. 
Brokers  and  auctioneers  are  deemed  to  be 
the  afteuts  of  both  parties,  and  by  virtue 
of  their  employment  stand  insuch  relati(ji) 
to  their  principals  that  they  can  sign  the 
names  of  the  partie.«  to  a  contract  of  sale 
effected  through  their  agency.  .Such  au- 
thority is  implied  from  the  necessity  of  the 
case;  because  without  it  they  could  not 
complete  a  contract  of  sale  so  as  to  make 
it  legally  binding  on  the  parties.  Nor  is 
it  at  all  material  that  the  names  should 
be  written  at  the  bottom  of  the  memoran- 
dum. It  is  sudicient  if  the  names  of  the 
principals  are  inserted  in  such  form  and 
nianner  as  to  indicate  that  it  is  theii'  con- 
tract, by  which  one  agrees  to  sell  and  the 
other  to  buy  the  goods  or  merchandise 
s|)pci(ied,  upon  the  terms  therein  e.\- 
jiresscd.  It  is  the  substance,  and  not  the 
form,  of  the  memorandum,  which  the  law 
regards.  Thegreat  imrposeof  the  statute 
is  answered,  if  the  names  of  the  parties 
and  the  terms  of  the  contract  of  sale  are 
authenticated  by  written  evidence,  and  do 
not  rest  in  parol  jiroof.  Penniman  v. 
Hartshorn,  l.*?  Mass.iST,  Hawkins  v. t'hace, 
11)  Pick.  ,")()2.  .^0.) ;  Fessenden  v.  Mussey,  11 
("ush.  127;  Morton  v.  Dean.  13  Met.;!S.".; 
Salmon  Falls  Manuf.  t'o.  v.  GoddarJ,  1-J 
How.  UC. 

The  only  other  exception  taken  to  the 
ruling  of  the  court  i)resents  a  question  of 
some  dilticulty.  To  understand  it,  it  is 
necessary  to  recur  to  the  positions  as- 
sumed by  the  respective  parties  at  the 
trial.  Theplaintiffs  contended  and  offered 
evidence  to  show  that  the  sale  was  an  ab- 
solute one.  and  was  made  upon  the  terms 
set  oat  in  the  written  m>>morandum.  The 
defendant,  on  the  other  hand,  insisted  and 
endeavcred  t(j  prove  that  the  contract  of 
sale  was  a  conditional  one,  and  was  not 
to  take  effect,  if  intellignuce  had  been  re- 
ceived by  the  steamer  of  an  advance  in  the 
]irice  of  copper,  nor  unless  the  plaintiffs 
shoulil  agree  to  export  it.  If  the  sale  and 
delivery  were  completed.  In  this  state  of 
the  case,  one  of  the  points  urged  by  the 
defenilant  was  that  the  broker  had  no  au- 
thority to  bind  him  by  the  memorandum 
which  was   offered   in   evidence.      Among 

LAW  SALES — 11 


'  the  instructions  given  to  the  jury,  they 
were  t<dd  that  if  the  defendant  dill,  in  liiK 
verbal  contract  entered  into  with  Canter- 
bury, make  the  sale  un  the  conditloim 
above  stated,  he  coulil  not  avail  himself 
of  cither  of  tlu-m,  because  they  were  not 
contained  in  the  written  uiemorandnm 
made  by  the  broker.  This  instructloD 
was  strictly  accurate  as  applied  to  the 
contract,  if  it  was  madi-  by  the  authorized 
agent  of  both  the  pai  ties.  liut  upon  tlie^ 
issue  whether  the  broker  was  authorized 
to  sign  the  memorandum  (tfft-rerl  in  proof 
as  the  agent  of  the  defendanr.  it  shuts, 
him  out  from  the  benclit  of  testimony 
which  has  a  direct  and  material  bearing. 
Upon  the  facts  as  they  appear  in  the  re 
port  of  the  case,  the  broker  was  not  the 
general  agent  of  the  defendant.  He  had 
no  authority  to  bind  him,  except  such  as 
was  derived  from  the  verbal  contract  into 
which  he  entered  for  the  sale  of  the  coi»- 
per.  He  was  in  the  strictest  sense  a  spe- 
cial agent  for  a  special  and  single  object, 
and  could  not  bind  the  defendant  beyond 
the  limits  conferred  by  the  precise  terms 
of  the  agreement  to  which  he  assented. 
He  was  his  agent  <mly  to  sign  a  memo- 
randum which  contained  the  whole  con- 
tract, with  the  terms  and  conilitions  an- 
nexed to  it  b.v  him.  A  broker.  Iron.  th<» 
v(fvy  nature  of  his  emplo3-ment,  has  only 
a  limited  authority,  wlien  it  appears,  as  it 
does  in  the  present  case,  that  he  had  nt> 
relation  to  a  party,  otlicr  than  what  it* 
derived  from  a  single  contract  of  sale. 
When  he  applies  to  a  vendor  to  negotiat«» 
n  sale,  he  is  not  his  agent.  He  does  not 
become  so  until  the  vendor  enters  into  the 
agreement  of  sale.  It  is  from  this  agree- 
ment that  he  derives  his  authority,  and  it 
must  necessarily  be  limited  by  its  terms 
ar.d  conilitions.  He  is  then  the  special 
agent  of  the  vendor  to  act   in   conformit.v 

with  the  contract  to  which  his  principal 
has  agreed,  but  no  further,  and  he  cannot 
be  regarded  jishis  agent,  unless  hecomplies 
with  the  terms  of  his  s|)ecial  authority  n» 
derived  from  the  contract.  In  short,  n 
bi-oker  is  authorized  to  sign  only  that 
contract  into  which  the  vendor  has  en- 
tered, not  another  and  different  contract. 
If  he  omits  to  include  in  the  inemoraiKhnn 
special  exceptions  and  conditions  to  the 
bargain,  he  signs  a  contract  which  he  lian 
no  authority  to  make,  and  the  party  rely- 
ing upon  it  must  fail,  biH-aiise  it  is  shown 
that  the  broker  was  not  the  agent  of  the 
vendor  lo  sign  that  contract.  It  would 
seem  to  follow  as  a  necessary  consequence 
that  evidence  of  the  verbal  agreement  into 
which  the  defendant   entered  lor   the  sale 

!  of  the  copper  was  competent  anil  material 
on  the  question  of  the  ex  tent  of  his  author- 
ity to  bind  the  defendant. 

Nor  does  the  admission  of  this  evidence 
for  this  purpose  at  all  contravene  tlie  rule 
that  parol  proof  is  incompetent  to  vary 
or  contrid  a  written  contract.  It  Is 
offered  for  a  wlio'ly  different  purpose.  It 
bears  solely  on  a  preliminary  Inquiry. 
The  object  is  not  to  explain  fir  alter  a  con- 
tract, but  to  show  that  no  contract  wan 
ever  entered  into,  because  the  person  who 
executed  it  had  no  nuthority  to  make  it. 
The  authority  of  an  agent  may  always  l>e 
shown  by  parol;  but    the  contracts   into 


1G2 


CODDINGTON  v.  GODDARD. 


which  lie  enters  within  the  scope  of  his  au- 
thority, wlien  reiln'.'ed  to  writing,  can  be 
proved  only  by  tlie  writiiiy;  itself. 

The  necessity  of  adtnittliig  evidence  of 
the  verbal  contract  entered  into  with  a 
broker,  in  cases  where  his  authority  is 
<lrawn  in  question,  is  quite  obvious.  If 
Buch    proof    were   incompetent,   a    broker 


who  had  entered  into  nesrotiHtions  with 
a  person  niiKlit  make  a  memorandnni  of 
a  contract  wholly  different  from  that 
which  he  was  authorized  to  sign,  'uid 
thereby  effectually  preclude  all  proof  that 
no  such  contract'  was  ever  nijide.  .Mien 
V.  Pink,  4  M.  &  W.144;  Pitts  v.  Beckett, 
];i  M.  &  W.  743,  750.     New  trial  granted. 


COE  V.  TOUGH. 


105 


COR  T.  TOUOn. 

(22  N.  E.  Rep.  550,  IIG  N.  Y.  273.) 

Court  of  Appeals  of  New  York,  Second  Divi- 
sion.   Oct.   8,    18S9. 

Apjieal  from  supreme  court,  general  terra, 
tliinl  dcpaitment,  entereil  upon  an  ordt-r 
made  June  :iO,  1886,  wliicli  allirmed  a  judg- 
ment in  favor  of  the  defendant,  entered  up- 
on a  verdict. 

Tliis  action  was  replevin,  brought  to  re- 
cover tlie  possession  of  personal  property  to 
wliich  tlie  plainlilT  claims  to  have  taken  title, 
by  purchase  from  the  defendant,  by  virtue 
of  the  following  written  memoranda,  to-wit: 

"III  DsoN,  N.  v.,  Feby.  ISlh.  1885. 
"Mr.  E.  Frank  Coe,bouglit of  William  Tough, 

2!i  Thomas  horsc-rakcs,  $21 $   ■ltV3 

2  Thomas  hay  tedders,  40 HO 

12  Titror  horse-rakes,  31 2.")3 

1  KiuvcU  leather  top  phaeton T.') 

1  Babcock  leather  top  phaeton 120 

1  two  seat  standing  top  En?,  spring  watron         90 

2  Columbus  leather  top  side-bar  buggies, 
117..->0 2.^5 

1  Broekvvay  end-spring  leather  top  buggy..         S5 

1  Uroekway  side-spring  open  buggy 49 

1  Waterloo  end-spring  rubber-top  buggy...         72 

$1,.520 
10  tons  E.  Frank  Coe's  phosphate,  2S 2S0 

$1,S00 
"The  above  goods  are  in  my  warerooms 
No.  22  Columbia  St.,  Varick  street,  at  store- 
room of  Hudson  Agricultural  Society,  and 
are  well  insured. 

"Hudson,  N.  Y.  Feby.  18,  1885. 
"E.  Frank  Coe — Dear   Sir:    In  order  to 
liquidate  and  secure  you  in  the  payment  of 
your  account  as  now  due,  I  will  propose  to 
do  as  follows: 

Bill  of  sale  of  goods  inclosed tl,.')20 

10  tons  E.  Frank  Coe's  phosphate 'ZSO 

Cash  or  customer's  note  in  a  few  days .500 

Customer's  notes  or  cash '220 

$2,500 
"Balance  your  account  to  date,  .'?1,975. 
"Yours,  truly,  Wsi.  Tul'uh." 

It  appears  that  defendant  was  indebted  to 
the  plaintiff  .■?2,000.  That  on  February  18, 
188-''),  the  collecting  agent  of  the  latter  went 
Id  the  defendant's  place  to  collect  the  debt, 
or  obtain  security  for  its  payment.  That  the 
defendant  proposed  to  sell  to  tlie  plaintilT, 
and  the  agent  offered  to  purchase  property 
on  account  of  the  debt.  Thereupon  the  de- 
fendant drew  the  tirst-mentioned  paper,  and 
handed  it  to  the  agent,  who  then  sugge.sted 
that  the  defendant  .also  give  him  a  note  to  the 
pl.iinlill,  slating  what  hud  transpired  between 
them.  The  defendant  wrote  and  subscribed 
the  other  pajicr,  wliieh  was  put  in  the  en- 
velojie  in  which  the  other  had  been  placed. 
The  defendant  on  this  occasion  paid  lo  the 
agent  .■?J.">,  to  apply  on  the  debt,  thus  reducing 
it  to  .^l.gTS.  The  agent,  having  advised  the 
plaintiff  what  he  had  done,  returned  to  the 
defendant's  place  on  the  21st  of  February, 


taking  with  him  a  draft  clialtel  mortgage, 
which  the  plaintiff  had  caused  to  be  drawn, 
and  informed  the  defendant  that  if  he  pre- 
ferred he  might  execute  it.  But  the  defend- 
ant declined  to  do  that.  .\nd  thereupon  the 
agent  requested  a  delivery  of  the  property,  to 
which  the  defendant  assented,  and  promised 
to  furnish  a  room  on  tlie  premises  in  wliich 
it  might  be  placed,  and  gave  him  the  key  to 
it.  'J  he  agent  said  that  was  s.itislactory. 
The  defendant  said  he  would  not  have  tiine 
to  do  it  that  time;  and  it  was  then  under- 
stood that  the  agent  would  come  again  on 
Monday,  the  24th,  when  the  goods  would  be 
separated  aiul  received  by  liim.  For  reason 
of  which  the  defendant  was  advised  on  Alon- 
day,  the  agent  did  not  go  that  day,  but  did 
the  next  day,  when  the  defendant  refused  to 
deliver  the  property.  The  property  was  taken 
upon  the  requisition  in  this  action,  and  de- 
livered by  the  sheriff  to  the  plaintiff.  The 
trial  court  directed  a  verdict  for  the  defend- 
ant. 

Henri/  D.  HoMikiss,  for  appellant.  H.  E. 
Andrews  and  L.  F.  Lonyleij,  for  respondents. 

Bradley,  J.,  (after  stating  tlte  farts  as 
above.)  The  (irst  question  presented  is 
whether  there  was  a  v.alid  contract  made  for 
the  sale  of  the  jiroperty  by  the  defendant  to 
plaintiff,  and,  if  so,  the  fuitlier  question  will 
arise  whether  it  was  an  executed  one,  so  as 
to  pass  the  title  to  the  plaintiff,  or  was  execu- 
tory merely.  As  no  jiart  of  the  property  was 
delivered  to  or  received  by  the  plaintiff,  and 
none  of  the  purcha.se  money  paid,  as  reijuired 
by  the  statute  of  frauds,  the  sale  was  void, 
unless  a  note  or  memorandum  of  the  contract 
was  made  in^vriting,  and  sidiscribcd  bv  the 
defendant.  2  Kev.  St.  p.  13l),  §  ;S.  The  form 
of  the  memorandum  as  drawn  was,  "K. 
Frank  Coe  bought  of  William  Tough,"  fol- 
lowed by  a  list  of  the  articles  of  i)ri>perty  in 
question,  with  pricesaddrd.  This  paper  was 
not  at  the  end  of  it  subscribed  by  the  defend- 
ant, so  that,  standing  alone,  whatever  view 
may  be  taken  of  its  terms,  it  was  not  effect- 
ual'as  a  contract  of  sale.  .lames  v.  Patten, 
6  N.  Y.  9.  But  it  is  contended  that  the  note 
or  letter  written  on  the  same  occasion  by  the 
defendant,  subscribed  by  him,  and  addressed 
to  the  plaintilT,  may  be  taken  in  connection 
with  the  last-mentioned  memorandum,  and 
the  signature  to  the  one  treated  assubscril)ed 
to  both,  each  constituting  part  of  the  saiuo 
instrument.  To  permit  this  to  be  done,  so 
as  to  relieve  it  from  the  operation  of  the  stat- 
ute, the  two  papers  must  have  been  so  phy- 
sically united,  or  such  reference  made  by  one 
of  them  to  the  other,  th.it  they  may  be  con- 
strued together  as  one  instrument  without 
the  aid  of  oral  evidence.  Baptist  Church  v. 
Bigelow,  10  Wend.  '28;  Wright  v.  Weeks.  25 
X.  Y.  15;i:  Drake  v.  Seaman,  '.17  N.  Y.  '230. 
affirming  27  IIun,G3;  Stone  v.  Browning,  63 
X.  Y.  508.  The  two  papers  by  their  date 
purport  to  have  been  raadi-  at  the  same  time; 
thcv  are  in  the  haudwritingof  thedefendant; 


166 


COE  c.  TOUGH. 


relate  to  the  same  subject;  and  tlie  refeience 
to  the  paper  designated  as  a  "bill  of  sale"  in 
the  one  embraces  m  (igiires  certain  amounts 
corresponding  with  those  intheother.  They 
sufficiently  releri(Hl  to  the  same  transaction 
to  permit  them  to  be  construed  together,  and 
to  be  given  such  effect  as  they  were  entitled 
to.  Tallraan  v.  Franklin.  14  N.  Y.  584; 
Peabcxlv  v.  Sjievers,  56  N.  Y.  230;  Peck  v. 
Vandeniark,  9'J'n.  Y.  29,  1  N.  E.  Rep.  41. 
The  more  difficult  qufstiim  arises  upon  the 
consideration  of  the  construction  and  effect 
which  may  be  given  to  those  papers.  It  has 
been  lield  that  a  memorandum,  in  the  form 
of  that  here  designated  as  a  bill  of  sale,  with 
payment  receipted,  did  not  constitute  a  con- 
tract of  sale,  so  as  to  exclude  parol  evidence  of 
warranty,  but  was  a  mere  receipt.  Filkins 
V.  \Vhyland,24  X.  Y.  338.  M'hile  presump- 
tively, at  least,  a  receipted  bill  in  that  form 
will  not  have  the  character  of  a  contract  of 
sale,  the  effect,  when  no  receipt  is  added,  may 
be  otherwise.  Then  it  may  be  such  a  con- 
tract, or  the  written  evidence  of  it,  within 
the  intention  of  the  parties,  and  entitled  to 
such  effect.  Terry  v.  Wheeler,  25  N.  Y.  520; 
Bonesteel  v.  Flack,  41  Barb.  435.  That  paper, 
standing  alone,  not  being  subscribed  by  the 
defendant,  had  no  validity,  and  in  connec- 
tion with  the  other  it  must  be  treated  as  re- 
ferred to  for  the  purpose  indicated  by  the 
terms  of  the  latter,  by  which  the  defendant 
says  that,  "in  order  to  liquidate  and  secure 
you  [plaintiff]  in  the  payment  of  your  ac- 
count as  now  due,  I  will  propose  to  do  as  fol- 
lows: Bill  of  sale  inclosed,  SI, 520;"  and 
then  adds  another  item  of  property,  with 
two  items  of  cash  or  notes  to  make  up  the 
amount  of  .92,520;  and,  after  stating  tlie  bal- 
ance of  the  plaintiff's  account  at;ifl,'J75,  sub- 
scribes bis  name.  In  aid  of  the  construction 
of  the  instrument,  reference  may  be  bad  to 
the  extrinsic  circumstances  attending  the 
transaction  between  the  defendant  and  the 
plaintiff's  agent.  The  latter  called  upon  the 
defendant  to  obtain  payment,  or  security  for 
its  payment,  of  the  debt  due  his  principal 
from  the  defendant.  The  interview  resulted 
in  an  offer  of  the  defendant  to  sell,  and  of 
the  agent  to  purchase,  some  personal  prop- 
erty, on  account  of  the  debt;  and,  for  the 
purpose  of  doing  so,  the  bill  of  sale,  so  called, 
was  drawn  by  the  defendant,  and  lianded  to 
the  agent  unsigned.  Tlje  note  or  letter  ad- 
dressed to  the  plaintiff  was  written  upon  the 
suggestion  of  the  agent  that  the  defendant 
put  on  paper  a  statement  to  be  taken  to  the 
plaintiff  of  what  had  transpired  between 
them.  The  amount  of  the  prices  designated 
for  the  articles  of  property,  with  that  of  the 
proposed  cash  or  notes,  was  purposely  made 
to  exceed  the  debt,  with  a  view  to  enable  the 
plaintiff  to  realize  from  it  tlie  full  amount  of 
his  account  against  the  defendant.  It  is  not 
important  whether  the  purpose  of  the  con- 
templated sale  was  to  pay  or  secure  the  pay- 
ment of  the  debt.  The  apparent  design,  as 
indicated  by  the  oral  evidence  of  the  trans- 
action, was  a  sale  and  uurchase,  and  the  so- 


called  "bill  of  sale"  was  drawn,  delivered, 
and  received  for  that  purpose.  That  was  not 
accomplished  by  it.  It  is,  however,  con- 
tended that  the  paper  afterwards  written,  ad- 
dressed to  the  plaintiff,  and  signed  by  the  de- 
fendant, was  effectual  to  give  to  the  former 
the  effect  of  a  bill  of  sale  subscribed  by  the 
defendant;  and  that  it  was  not  embraced 
within  the  executory  character  of  the  propo- 
sition expressed  in  the  other,  but  that  only 
the  payment  or  delivery  of  the  cash  or  notes 
there  mentioned  was  dependent  upon  the 
future  action  of  the  defendant.  The  inten- 
tion of  parties  to  a  written  instrument  must 
be  derived  from  it,  although  its  construction 
may  be  aided  by  the  light  of  extrinsic  circum- 
stances. When  this  alleged  bill  of  sale  was 
handed  to  the  plaintiff's  agent,  it  was  inef- 
fectual for  any  purpose,  whatever  may  have 
been  the  design  of  tlie  parties.  It  does  not 
appear  that  the  other  paper  was  then  in  con- 
templation, and  its  effect  must  be  ascertained 
from  its  terms  as  they  may  be  construed. 
In  its  relation  to  the  former,  it  may  be  as- 
sumed that  reference  was  made  to  the  articles 
of  property  there  mentioned.  Biit  it  is  diffi- 
cult to  distinguish  the  application  of  the  offer 
or  proposition  of  the  defendant  to  any  one 
from  any  other  portion  of  the  means  men- 
tioned for  the  payment  or  security  of  the 
debt.  It  was  to  "liquidate  and  secure"  it  as 
stated.  The  defendant  proposed  to  do  what 
he  had  not  alnady  done  in  that  respect,  lie 
had  neither  transferred  any  of  the  personal 
property  or  notes,  and  had  made  no  contract 
to  that  effect.  They  altogether  came  within 
the  purpose  expressed,  and  his  proposition  or 
promise  to  accomplish  it  was  in  form  execu- 
tory. If  the  paper  called  a  "bill  of  sale"  bad 
been  independently  valid,  a  different  view 
may  have  been  taken  upon  construction  of 
the  writings.  It  would  therefore  seem  that 
the  sui)port  of  the  plaintiffs  claim  of  title  re- 
quires the  conclusion  that  the  offer  or  prom- 
ise of  the  defendant  to  sell  to  him  the  proji- 
erty  was  or  became  effectual  for  that  [lur- 
pose.  It  is  a  rule,  as  relates  to  personal 
property,  that  when,  by  a  valid  agreement, 
one  party  unconditionally  agrees  to  sell  to  an- 
other, who  agrees  to  purchase,  and  nothing 
remains  to  be  done  to  complete  the  sale,  the 
contract  will  be  treated  as  an  executed  one, 
and  title  will  pass,  although  no  delivery 
or  payment  is  made.  Olyphant  v.  Baker,  5 
Denio,  379;  Terry  v.  Wheeler,  25  N.  Y.  520. 
In  the  present  case  the  proposition  or  piomise 
of  the  defendant  to  sell  the  property  was  by 
its  terms  and  import  made  with  a  view  to 
a  subsequent  acceptance  by  the  plaintiff. 
There  canwot,  therefore,  be  said  to  have  been 
any  concurrent  undertaking  on  the  part  of 
the  latter  to  purchase.  This  proposition, 
when  made,  seems  to  have  had  no  considera- 
tion for  its  support.  It  was  a  mere  offer  of  a 
debtor  to  sell  goods  to  his  creditor  in  pay- 
ment or  security  of  the  debt  due  the  latter, 
founded  upon  no  new  consideration,  but  rest- 
ing solely  in  the  purpose,  so  manifested,  of 
the  debtor  to  oav  the  debt  or  secure  its  uav- 


COE  V.  TOUGFI. 


le- 


nient in  tliat  mannor.  Tlio  conclusion  would 
seciii,  foi-  tliat  reason,  to  follow  tliat  a  siibse- 
<|iipnt  acceptance  would  not  be  effectual  to 
(  re.ite  a  valid  contract  of  sale  between  the 
liailies.  Cooke  v.  Oxley,  3  Terin  K.  053; 
IJuinet  V.  IJisco,  4  Johns.  235;  Railroad  Co. 
V.  IJrinckeihoff,  21  Wend.  139:  Railroad  Co. 
V.  Dane,  43  N.  Y.  240;  Plaidv-Road  Co.  v. 
Snediker,  18  Harb.  317.  In  that  respect  this 
case  differs  from  those  determined  in  ]i\irrell 
V.  Root,  40  X.  Y.  49tJ;  Justice  v.  Lang,  42 


N.  Y.  493,  ,52  X.  Y.  323;  M;ison  v.  Decker. 
72  N.  Y.  595.  In  those  cases  the  offers  and 
promises  of  the  defendants  had  the  support 
of  consideration,  arisiiif;  out  of  mutualily  of 
agreement  or  produced  in  some  other  m. inner. 
If  these  views  are  correct,  there  was  no  valid 
contract  made  bv  the  defeudant  for  the  sale 
of  the  property  in  quesii.in  to  the  pl.iintilT, 
to  support  his  claim  of  title.  The  jud'iment 
should  be  alliriiied.  All  concur,  except 
rAUKKit,  J.,  not  siltirifj. 


I 


CO.MEIi  c.  CUXNIXGIIAM. 


169 


» 


COMER  T.  CUXXIXGHAM. 

(77  X.  Y.  391.) 

Court  of  Appeals  of  New  York.    1879. 

Ee()lt'vin  for  forty-five  bales  of  cotton, 
hrouKlit  by  {ilaintiff  jih  HurviviiiK  member 
of  tlic  firm  of  UatcH  &  ('omer,  coiiimiK«ion 
nuiTliiiiitH  at  Savannah,  (la.  It  was 
originally  brought  af^aiiiht  James  B.  Cun- 
ninifiiaiM.  of  the  firm  of  .hiinei--  H.CunnitiK- 
liam  &  Co.  Ciinninirliam  haviiiR  died,  his 
admiiiistratri.x  was  snbstituted.  The 
fuetH  appear  in  the  opinion.  Judgment 
for  defendant. 

ICrastiis  ("oolc,  for  a[)()ellant.  I'.enjaniin 
G.  HileliinKs.  f<'r  resjiondent. 

RAI'ALLO,  .J.  Tile  forty-five  bales  of 
cotton  claimed  by  the  plaintiff  in  this  ac- 
tion w  ere  part  of  a  lot  of  sixty  bales  which 
were  mi  tlie  ISth  of  .November,  ls70.  sliip- 
ped  from  Savannah,  (!cor(;ia,  to  the  firm 
of  James  B.  (■\iiiniii;iham  &  Co.  of  New 
York,  by  F,  S.  Williams,  a  business  cor- 
respondent of  that  firm,  who  was  in  the 
habit  of  shippiiiir  cotton  to  tlioni  and 
drnwiiiK  against  it  for  advances   thereon. 

A  bill  of  lading  of  the  cotton  on  lioaril 
the  steamer  .San  Salvador,  with  a  Hi;;lit 
draft  attached  thereto,  drawn  by  Wil- 
liams upon  Cunniiiuliam  &  Co.,  f-ir  $4,.">l)0, 
payable  to  the  order  of  Bryan  &  Hunter 
of  Savannah,  and  indnrscd  l)y  them,  were 
presented  to  Ciiiiniii«liam  i^  Co.,  at  Xew 
Vork,  by  the  agents  of  Bryan  &  Hunter, 
on  the  L'lst  of  Xoveinber,  ]S7(),  and  Cun- 
ningham &  Co.  thereupon  paid  the  draft 
and  received  the  bill  of  ladint;  in  the  usual 
course  of  business.  The  payment  of  the 
draft  was  made  as  an  advance  upon  the 
cotton  on  the  faith  of  the  bill  of  ladins;. 
In  the  bill  of  ladiny;  Williams  was  named 
as  the  shipperof  tlu-  ciitton.  It  was  deliv- 
erable to  order  and  the  liill  of  lading:  was 
dul.v  indorsed.  Cunniny:hani  &  Co.liiid  no 
knowledge  of  any  claim  t'f  an.v  person  on 
the  cotton,  and  upon  the  uncontrovcrted 
evidence  the.v  stand  in  the  position  of 
bona  fide  purchaser.^  of  the  cotton,  or 
lenders  thereon  in  Kood  faith.  The  defend- 
ant is  the  representative  of  Cunningliam 
&  Co. 

Cunnint:ham  &  Co.  obtained  possession 
of  the  :-otton  under  the  bill  of  l;idin>;  anil 
put  it  in  store,  where  it  remained  until  the 
25  th  of  .Vovember.  when  the  forty-five  I  )ales 
in  question  were  re|)levied  in  this  action 
by  Bates  &  Comer  of  Savannah. 

Th(>  grounds  uixin  which  they  claim  to 
beentitled  to  take  the  cotton  are.  that 
the  sixty  lialcs  shipped  by  Williams  as 
above  st.Mteil  were  part  of  a  lot  of  one 
hundred  and  seventeen  linles  sold  by  the 
firm  of  Bates  &  Comer  (of  whom  the  iilain- 
tiff  is  survivor)  to  Williams,  at  Savannah, 
in  November,  1^70,  for  cash.  'I'lie  price  of 
the  whole  lot  was  lS;x.ri7r)  'JO.  The  plaintiff 
testified  that  the  one  hundred  and  seven- 
teen bales  were  delivered  to  Wjlli.inis  on 
the  IStli  of  November.  1n7(I.  and  that  on 
the  next  day,  Saturda.v  the  Bitli,  Williams 
gave  to  plaintiff  two  checks  on  Bryan  & 
Hunter;  (me  for  $r.,OlJ(»,  which  was  paid, 
ami  one  for  $"J,ri7t>.20,  which  was  not  pai<l. 
It  appears  that  the  sixty  bales  shipiied  to 
Cunninshani    &   Co.  were   on    the   ISth   of 


November  delivered  by  the  sellerH  by  di- 
rection of  Williams,  at  the  compresH.  ticInR 
the  place  where  cotton  was  pressed  by  the 
steamers,  preparatoiy  to  shipment,  and 
that  they  were  on  the  same  day  laden  on 
board  the  steamer  and  the  bill  of  ladliiR 
before  mentioned  was   issued  to  WilliaraH. 

He  thereu[)on  drew  the  .«4,."j0()  draft  on 
CnnninKham&  Co.,aad  |iresente<l  theHume 
withtlie  bill  of  ladinu  to  Bryan  &  Hunter, 
who  discounted  the  draft,  and  nfjainst  the 
proceeds  of  this  discount  and  other 
moneys  in  their  hands,  Williams  drew 
the  before-mentioneil  checks  on  Brvnn  & 
Hunter  for  $(;,()00  and  ^^.(niKi'n  in  favor  of 
the  plaintiff's  firm,  for  the  pur|iose  of  pay- 
ing for  tlio  one  hundred  and  seventeen 
bales,  and  plaintiff's  firm  <in  the  next  day 
cdlpcted  the  ?(;,(ll)0  check  as  before  stated. 
Will  ia  m  s  testifies  that  the  check  for  ?2.<;:(i. 20 
was  dated  some  days  ahead,  and  also 
that  he  informed  plaintiff  of  the  shipment 
at  the  time,  but  ;is  these  facts  are  contro- 
verted they  are  not  taken  into  considera- 
tion. 

Xo  condition  apiiears  to  have  lieen  at- 
tached by  the  parties  t<i  the  ilelivery  of 
Ihecotton  on  thelMhof  November, "nor 
is  it  alleged  that  Williams  obtained  pos- 
session (jf  it  by  means  of  any  fraud.  It 
was  voluntarily  and  absolutely  delivered 
by  the  vendors  in  the  usual  course  of  busi- 
ness, jind  no  (|iiestion  would  arise  as  to 
the  title  of  Williams  or  of  Cunningham  Ac 
Co.,  tint  for  a  statute  of  the  state  of 
(icorgla.  upon  which  the  plaintiff  relies  to 
maintain  tliis  action. 

This  statute  provides  that  "cotton,  rlco 
and  other  products  sold  by  planters  an<l 
commission  merchants  on  cash  sale  slinll 
not  be  considered  as  the  [iroperty  of  the 
buyer,  or  the  ownership  given  up,  until 
the  same  shall  be  fully  pai<l  for,  although 
it  may  have  been  delivered  into  the  pos- 
session of  the  buyer." 

It  Is  not  claimed  on  the  i>art  of  the 
plaintiff  that  this  statute  has  any  force, 
ex  proprio  viuore.  in  this  state,  but  the 
claim  maile  is,  that  this  statute  lieing  the 
law  of  the  state  where  the  parties  resided 
and  the  [iroperty  was,  and  »vhere  the  con- 
tract was  niaile  and  to  lie  perlormed,  it 
entered  into  the  terms  of  the  contract, 
.•ind  became  a  part  of  It,  to  the  same  ex- 
tent as  If  its  essential  provisions  had  been 
written  into  it. 

.Assuming  this  )iosition  to  t>e  correct, 
the  iiuestiuiis  arise,  first,  what  w;is  the 
nature  and  eilect  of  the  <lealing  bet  ween 
the  vendors  and  Williams, , 'is  construed  by 
including  the  provisions  of  this  statute  as 
part  of  the  contract,  and  secondly,  what 
are  the  rights  of  a  bona  tide  purchaser 
from  WilliMUis. 

The  plaintiff  contends  that  the  effect  of 
incorporating  the  statute  into  the  con- 
tract was  to  make  the  sale  to  Williams 
a  conditional  sale:  lint  I  a|iprehend  that 
this  is  not  an  accurate  view.  The  sale 
was  a  present,  alisolule  sale;  not  execu- 
torvnor  depending  upon  any  contingency. 
The  (diligation  of  tlie  buyer  to  pay  wa.'^ 
absidute,  and  the  property  was  at  his 
risk.  If  it  had  been  dcstr.pyeil  or  lost  on 
the  voyage,  his  obligation  to  pay  would 
not  have  lieen  dlsi-hurgod,  notwithstand- 
ing that  as  between    him  anil   his  vendors 


170 


COMER  V.  CUNNINGHAM. 


tlie  title  liad  not  pnssed.  The  statute  <lid 
not  i)iirj>()rt  to  .iffeet  any  of  these  rights, 
or  lo  iittach  !iny  condition  to  tlie  con- 
tract of  sale.  It  simply  nia<le  the  delivery 
conditional,  anil  if  written  into  the  con- 
tract would  affect  nothing  hut  the  deliv- 
ei-y.  The  property  in  tliat  case  stood  in 
precisely  the  same  c<indition  after  its  de- 
livery to  Williams  at  Savannah  as  if  the 
transaction  had  taken  place  in  this  state, 
and  tlie  vendor  on  a  cash  .*ale  had  ex- 
pressly attached  to  the  delivery  a  condi- 
tion that  the  title  should  not  pass  until 
payment  of  the  price.  iSnch  transactions 
aix'  of  common  occurrence  in  this  state, 
and  the  rights  of  the  vendor  and  vendee 
and  of  bona  tide  (turchasers  from  the  ven- 
dee are  well  settled  by  the  adjudications 
of  our  courts.  Wliere  ^ooils  are  sold  to 
be  paid  for  in  cash  or  by  notes  on  delivery, 
if  delivery  is  made  without  demand  of  the 
notes  or  cash  the  presumption  is  that  the 
condition  is  waived,  and  a  complete  title 
vests  in  the  i)urchaser;  but  this  presump- 
tion may  be  rebutted  by  proof  of  acts  or 
declarations  and  circumstances  showins 
an  intention  that  the  delivery  shall  not  be 
Considered  complete  until  pei-formanee  of 
the  condition,  and  the  question  of  inten- 
tion is  one  of  fact.  But  after  actual  deliv- 
erj',  although  as  between  the  parties  to 
the  sale  such  delivery  be  conditional,  a 
bona  fide  ijurchaser  from  the  vendee  ob- 
tains a  i)erfect  title  (Smith  v.  I^ynes,  5  N. 
■¥.41;  Fleeman  v.  McKean,  2.")  Barb.  474; 
Beavers  v.  Lane,  li  Duer,  238),  though  a 
voluntary  assignee  of  the  purchaser  does 
not.  llaegerty  v.  Palmer,  6  .lohna.  Ch. 
43S.  The  statute  of  Georgia  having  no 
operation  here  as  law,  its  only  effect  can 
be  to  place  the  parties  in  the  same  posi- 
tion as  if  it  had  been  stipulated  at  the 
time  of  the  delivery  to  Williams  that  such 
delivery  sh(>uld  be  conditional  ui)on  pay- 
ment, and  we  must  apply  to  the  case  the 
law  o(  this  state  whicli  protects  a  bona 
fide  purchaser  from  one  to  whom  goods 
have  been  conditionally  delivered,  against 
theclaiinsof  the  original  vendor.  Uawls 
V.  Ueshler,  3  Keyes,  .")72,  is  very  much  in 
point.  Deshler  sold  a  <4uantity  of  corn  to 
Gritfin  and  gave  him  an  order  on  the  ele- 
vator to  deliver  the  corn  to  liim  "subject 
to  my  order  till  paid  for."  This  delivery 
was  clearly  conditional.  The  Georgia 
statute  was  actually  incorporated  into 
the  contract,  and  neither  Griffin  nor  his 
execution  creditor  or  voluntary  assignee 
could  have  resisted  successfully  a  claim  of 
the  vendor  to  retake  it.  Yet  this  court 
held  that  (Jriffin  havine  shipped  the  corn 
and  drawn  against  it,  the  drawees  having 
paid  the  draft  on  the  faith  of  the  bill  of 
lading,  were  protected  as  bona  fide  pur- 
chasers, and  also  under  the  factor's  act. 

In  Wait  V.  Green,  315  N.Y  55(i,the  vendor 
of  a  horse  delivered  it  and  took  from  the 
purchaser  a  note,  at  foot  of  which  was  a 
memorandum  signed  by  the  vendee: 
"Given  for  one  bay  horse.  The  said  Mrs. 
Comins  (the  vendor)  holds  the  said  hoise 
as  her  property  iintil  the  above  note  is 
paid."  This  court  held  that  a  bona  fide 
purchaser  from  the  vendee  obtained  a 
good  titlj.  This  case  is  supposed  to  be  in 
conflict  with  Herring  v.  Hoppock.  15  N.  Y. 
409;    Ballard    v.   Burgett,  40   id.   314,   and 


Austin  V.  Dye,  4()  id.  500.  If  the  transac- 
tion is  to  be  regarded  as  a  conditional  sale, 
the  case  is  in  conflict  with  the  two  last 
cited  cases  in  40  and  4G  N.  Y  ,  l)ut  it  can 
well  be  treated  as  a  case  only  of  condi- 
tional delivery,  lu  Ballard  v.  Burgett  it 
was  held  that  where  the  sale  was  condi- 
tional, no  title  passed  to  the  vendee,  be- 
cause there  was  no  sale  until  the  condi- 
tion was  perfoiined,  and  the  so-called  ven- 
dee was  a  mere  bailee  with  a  contract  for 
a  future  sale.  That  the  property  while  in 
his  hands  was  at  the  risk  of  the  vendor, 
and  tlie  so-called  vendee  was  not  liable 
for  the  price.  Tliat  he  had  no  title  to  the 
property  and  could  convey  none,  even  to 
a  l)ona  tide  purchaser;  that  there  was  no 
sale,  and  he  had  a  mere  possession,  and 
that  the  Hnding  of  the  referee  that  the 
agreement  was  that  the  property  was  to 
remain  the  pro|)erty  of  the  plaintiff  till 
the  $]f>0  were  paid,  was  incompatible  with 
the  Hnding  of  a  sale,  and  the  true  con- 
struction of  the  contract  was  that  the 
oxen  were  delivered  under  an  agreement 
that  when  the  party  receiving  thenishould 
pay  .flso,  the  party  delivering  them  would 
sell  the  o.xen.  Wait  v.  Green  was  distin- 
guished, and  it  was  held  that  under  the 
circumstances  of  that  case  if  the  horse 
had  died  before  payment  of  the  note  such 
death  would  have  been  no  defense  to  the 
note,  and  that  was  a  conclusive  circum- 
stance showing  that  the  condition  ex- 
pressed in  the  note  was  a  mere  security 
for  the  price.  Whereas  in  the  case  at  bar 
had  the  oxen  died  no  action  could  have 
been  maintained  for  the  purchase-money. 
The  cases  holding  that  where  there  is  a 
sale  and  a  conditional  delivery  a  bona  fide 
purchaser  from  the  vendee  acijuiresa  good 
title  discharged  of  the  lien  for  tlie  pur- 
chase-money are  cited,  but  they  are  not 
attempted  to  be  overruled  nor  are  they 
questioned.  In  Austin  v.  Dye,  40  N.  Y. 
500,  the  principle  of  this  decision  is  clearly 
stated,  and  is,  that  one  having  [lossession 
of  personal  property  as  bailee,  with  an  ex- 
ecutory and  c<inditional  agreement  for  its 
purchase,  the  condition  not  havinj;  lieen 
performed,  can  give  no  title  to  a  pur- 
chaser though  the  latteracts  in  good  faith 
anil  [larts  with  value  without  notice  of 
the  want  of  title.  In  that  case  the  alleged 
vendee  was  to  [lay  hire  for  the  oxen  until 
he  should  pay  a  specified  sum  in  a  speci- 
fied manner  in  lumber,  and  then  he  was 
to  become  the  owner.  Until  then  there 
was  no  sale,  and  they  were  at  the  risk  of 
the  bailor,  who  received  hire  for  their  use. 
The  sale  was  executory  as  that  in  15allard 
v,  Burgett  was  construed  to  be.  In  Her- 
ring V.  Hopiiock,  15  N.  Y.409,  and  Strong 
V.  Taylor,  2  Hill,  32G,  the  question  of  the 
rights  of  a  bona  fide  jiurchaser  did  not 
ariseand  it  is  thereforeimniaterial  to  con- 
sider whether  those  were  eases  of  condi- 
tion.! 1  sale  or  conditional  delivery.  In 
the  present  case  it  cannot  be  pretended 
that  the  sale  was  executory  or  condi- 
tional. It  was  an  absolute  unconditional 
sale,  and  the  greater  part  of  the  |iurchase- 
money,  much  more  than  sulliclent  to  cover 
the  price  of  the  bales  received  by  the  de- 
fendant's firm,  hail  actually  been  paid. 
There  is  no  feature,  favorable  to  the  plain- 
tiff, by  which  it  can  be  distinguished  from 


COMER  V.  CUNNINf;irAM. 


171 


Smith  V.  Lynes,  5  N.  Y.  41,  and  the  cases 
llitTi;  referred  to,  and  that  cane  and  KawlH 
V.  IH'Hlilcr,  ;>  KeyeH,  ')72.  I'HtaliliHli  that  a 
conilitiuti  tliiit  the  title  Khali  not  iiawn  un- 
til puymeiit,  when  attache!!  to  a  delivery 
upon  an  actual  completed  contract  of 
Hale,  is  available  only  as  aKaiiiKt  the  ven- 
dee and  i)ersons  claiming?  under  him, other 
than  liona  fide  purchasers  witliout  notice. 
This  view  renders  it  unnecessarj-  to  ex- 
amine that  hranch  of  the  defense  which 
rests  upon  the  factor's  act.  The  case  fulls 
literally  within  the  provisions  of  the  act, 
hut  it  has  been  said  in  numerous  cnseB  that 


the  first  section  of  the  act  applies  only 
when  the  slii|iment  hiis  been  madi-  witii 
the  consent  of  the  owner.  In  the  name  of 
another  person.  There  is  no  adjudicated 
case  which  rests  nixm  that  proposition, 
and  it  may  lie  an  open  tiuestion  whether 
under  the  circumstances  of  the  present 
case  the  statute  wotdd  not  be  a  |)rotec- 
tion.  but  as  theKniund  already  discussed 
la  sullicient  to  decide  the  case  time  will 
not  lie  consumed  in  that  in<|uiry. 

The  judgment  should  be  allirmed. 

All  concur. 

.ludKi'ient  aflirmcd. 


I, 

11 


COMMERCIAL  NAT.  BAXK  v.  GILLETTE. 


173 


CO.M.MEKCIAL  NAT.   BANK 
LETT13. 


GIL- 


(90  Ind.  2l!8.) 

Supreme  Court  of  Indiana.    May  Term,  188.3. 

J.  M.  Vonfleet,  for  appellant.  J.  H. 
Baker  and  J.  A.  S.  Mitchell,  for  appellee. 

ELLIOTT,  J.  The  Elkhart  Car  Com- 
|)uiiy.  by  a  written  contract,  wold  to  the 
appellant  .')!()  car  wheels,  conHtitutiiiK  a 
part  of  1,100  wheels;  at  the  time  of  the 
Bale  tiie  wheels  were  in  one  common  masH, 
and  there  was  no  BCi)aration  iior  any  doK- 
il^nation  of  the  wheels  sold  to  the  appel- 
lant; after  the  execution  of  the  contract 
tlio  entire  lot  of  wheels  was  seized  upon 
executions  issued  at  the  suit  of  api)ellee, 
and  this  action  was  brou>;ht  for  the  pos- 
session of  tliose  solil. 

The  contention  of  appellee  is  that  ap- 
pellant acquired  no  title,  because  the  arti- 
cles sold  were  not  designated  or  separated 
from  tlieconinion  lot  of  which  they  formed 
a  fiart,  and  this  contention  prevailed  in 
the  court  below. 

There  is  much  strife  in  the  American 
cases  upon  this  (|uestion,  but  none  in  the 
English.  The  weiKht  of  the  former  is,  per- 
haps, with  the  theory  of  appeiliuit,  but 
the  text-writers  are,  so  far  as  we  have  ex- 
amined, all  with  the  English  decisions. 
Our  own  cases  are  in  harmony  with  the 
loiif;  estal)lished  rule  of  the  common  law. 
In  the  case  of  Brickev  V.  Huf?lies,4  lnd.l-)(i, 
the  Kufilish  rule  was  approved  and  en- 
forceil.  In  Murphy  v.  Stale,  1  Ind.I'ilG. the 
court  said:  "To  render  a  sale  of  ^loods 
valid,  the  specific,  individual  K""ds  imisl 
be  attreed  on  by  the  parties.  It  is  not 
enouj^h  *  *  »  that  they  are  to  betaken 
from  some  specified  larger  stock,  because 
there  still  remains  somethinj;;  to  be  done 
to  designate  the  portion  sold,  which  por- 
tion, before  the  sale  can  be  completed, 
must  be  separated  from  the  mass."  This 
doctrine  found  approval  In  8cott  v.  Kinji, 
12  Ind.  20.i,  and  there  are  other  eases  rec- 
ojjniziiiK  it  as  the  correct  one,  amons; 
them  Moflit  v.  (Jreen,  !)  Ind.lDS;  Indian- 
apolis, etc.,  15.  W.  Co.  V.  Masuire,  G2  Ind. 
14(1;  liertelson  v.  Bower. SI  Ind..')12;  Lester 
V.  East.  4!)  Ind.  .5NS,  vide  opinion,  p.  5i)4. 
The  rule  which  our  court  has  adopted  is 
upheld  by  the  .American  cases  of  Hutchin- 
son V.  Hunter,  7  Pa.  St.  14U;  Haldeman  v. 
Duncan,  .51  Pa.  St.fiC;  Fuller  v.  Bean,  :!4 
N.  H.  2S)0;  Ockington  v.  Kitchev,  41  N.  H. 
270;  Morrison  v.  Woodley,  S4  III.  r.i2; 
Woods  v.  Mc(jee,  7  Ohio,  4(17;  McLauchlin 
V.  Piatti,  27  Cal.  4(13;  Courtiitrht  v.  Leon- 
ard, 11  Iowa,  32;  Ropes  v.  Lane,  9  Allen, 
.')02;  Fersuson  v.  Northern  Bank,  14  Bush, 
!V)5  (2!)  Am.  R.  41S.)  In  MIchiKan,  the  rule 
seems  not  to   be  definitely  settled,  liut  in 


a  late  case  it  was  said:  "To  the  elab- 
orate argument  made  fi>r  the  defence  to 
show  that  there  can  be  neither  a  sale  nor 
a  pIed}>eot  prrjperty  without  In  some  man- 
ner specially  distiii;^uishing  it,  we  fully  as- 
sent, and  we  have  no  purpose  to  qualifj'or 
weaken  the  authority  of  Anderson  v. 
Brenneman,44Mich.  10s."  MerchantH'.etc, 
Bank  v,  Hibbard,  4S  Mich,  lis,  UN.  \V. 
Rep.  S:i4;  S.  C,  42  Am.  R.  4(m. 

The  civil  law  rule  is  the  same  as  that  of 
the  common  la  w,  anrl  our  great  lawyers 
have  given  it  unhesitating  approval.  2 
Kent,  Com.  639;   Story  Sales,   section    2'JO. 

The  American  cases  which  have  departed 
from  the  long  settled  nde.  are  built  on  the 
cases  of  KImberly  v.  Patchin,  III  N.  V.  :j:iO. 
and  Pleasants  v.  Pendleton,  0  Rand.  473, 
and  these  cases  proceed  upon  the  theory 
that  commercial  interests  demand  a  niorl- 
Ificatitui  of  the  rule.  In  our  judgment, 
commercial  interests  are  best  promoted 
by  a  rigid  adherence  to  the  rule  which  the 
sages  of  the  law  have  so  long  and  so 
strongly  approved.  The  rule  secures  real 
transactions  and  actual  sales,  ami  thus 
checks  the  wild  si)irit  <)f  speculation.  It' 
prevents,  in  no  small  measure,  the  making 
of  mere  wagering  cojitracts;  it  puts  busi- 
ness on  a  stable  basis,  and  makes  it  essen- 
tial that  there  should  be  real,  and  not 
sham,  transfers  of  property;  it  makes  ti- 
tles secure,  protects  creditors  and  pur- 
chasers and  represses  fraud.  If  it  were 
granted  that  the  rule  does  somewhat  In- 
terfere with  the  freedom  of  business  trans- 
fers, still  the  good  it  produces  far  out- 
weighs this  inconvenience.  But  we  do  not 
believe  it  iloes  interfere  with  actual  busi- 
ness transfers,  for  common  experience  In- 
forms us  that  real  sales  are  seldom,  if 
ever,  m;ide  without  a  siiecidc  designation 
of  the  thing  bought.  The  rule  may  inter- 
fere with  dealcis  in  "margins,"  makers  of 
"corners,"  and  framers  of  "options,"  and 
to  athrm  that  it  docs  do  this  is  to  give  it 
no  faint  praise.  In  i)rincli)le  the  rule  is 
sound,  and  in  practical  operation  salutary. 

The  efforts  made  by  the  courts  that 
have  departed  fmin  It  to  inakeexceptlons, 
to  mannfacturedistinctions  and  point  out 
differences  in  order  to  escape  disastrous 
consequences,  afford  strong  evidence  of 
the  wisdom  of  the  rule.  The  line  of  deci- 
sions in  someof  thestates,  wherea  depart- 
ure has  been  taken,  is  a  devious  and  tor- 
tuous one,  and  this  Is  to  be  expected  when 
once  sound  principle  is  turned  from  and 
newi-ules  sought  anti  adopted  which  have 
no  support  in  funilnmental  princlplfs. 

We  have  no  disposition  tt)  deiiart  from 
the  rule  which  has  so  long  prevailed  in 
this  state  and  elsewhere. 

.ludgment  atHrmed. 

Petition  for  rehearing  overruled. 


1 


COMMOXWEALTir  c.  FLEMING. 


175 


COMMOXWEALTn  v.   FLEMING. 

as  Atl.  Rep.  622,  130  Pa.  St.   138.) 

Supreme  Court  of  Ponnsylvnniii.    Nov.  4,  1S.S0. 

Error  to  court  of  quarter  sessions,  Mercer 
county. 

The  i)l;iintiff  In  error,  Joseph  Fleming,  be- 
ing a  wholesale  liquor  dealer,  licen.sed  and 
carrying  on  business  in  Allegheny  county, 
gold  and  sent  from  his  place  of  business,  C. 
().  J).,  to  Mercer  county,  where  he  had  no  li- 
cense, liquors  ordereil  by  persons  in  the  latter 
county.  For  this  he  was,  at  the  court  of 
quarter  sessions  of  Mercer  county,  indicted, 
tried,  convicted,  and  sentenced  for  selling 
liquor  therein  without  a  license.  He  now 
brings  error. 

JJefore  1'ax.son,  C.  J.,  Sterrktt,  Gkeen, 
Clakk,  Williams,  McCollum  and  Mitch- 
ell, JJ. 

Geori/e  Shiran,  Jr.,  and  William  S.  Pier, 
for  plaintifT  in  error.  O  W.  M'liride,  Dist. 
Atty.,  J.  A.  Straiiahitn,  and  IS.  H.  Miller, 
for  the  Commonwealth. 

Gkeen,  J.  In  the  case  of  Garbracht  v. 
Com.,  96  Pa.  St.  441),  which  was  an  indict- 
ment for  selling  liquor  without  license,  we 
held  that  "the  place  of  sale  is  the  point  at 
which  goods  ordered  or  purchased  are  set 
apart  and  delivered  to  the  purchaser,  or  to  a 
common  carrier,  who,  for  the  purposes  of  de- 
livery, represents  him. "  In  that  ease  the  or- 
der for  the  liquor  was  solicited  and  obtained 
by  the  defemlant  in  the  county  of  Mercer,  but 
was  sent  to  his  principal,  wlio  was  a  liquor 
dealer  in  the  county  of  Erie.  The  order  was 
executed  by  the  princii)al,  who,  in  the  county 
of  Erie,  at  iiis  place  of  business,  separated  or 
set  apart  from  his  general  stock  the  liijuor 
ordered,  and  delivered  it  to  a  common  carrier 
to  be  forwarded  to  its  destination  in  Mercer 
county.  AV'e  decided  that  this  was  no  viola- 
tion of  the  law  proliibiling  sales  without  li- 
cense, although  neither  the  defendant,  who 
was  a  traveling  agent,  nor  his  principal  held 
any  license  for  the  sale  of  liquor  in  Mercer 
county.  This  decision  was  not  changed  in 
the  least  u])on  a  subs6c|uent  trial  of  the  same 
defendant  on  a  different  state  of  facts,  as  re- 
ported in  1  Penny.  47L  In  the  case  now  un- 
der consideration  the  liquor  vas  sold  upon 
orders  sent  by  mail  by  the  purchasers,  living 
in  Mercer  county,  to  the  defendant,  who  is  a 
wholisale  liipior  dealer  in  Allegheny  county. 
The  goods  were  set  apart  at  the  defendanfs 
place  of  business  in  Allegheny  county,  and 
were  there  delivered  to  a  common  carrier, 
consigned  to  tlie  purchaser  at  liis  address  in 
Mercer  county,  and  by  the  carrier  transported 
to  Mercer  county,  and  there  delivered  to  the 
purchaser,  who  paid  the  expense  of  trans- 
portation. Upon  these  facts  alone,  the  de- 
cision of  this  court  in  the  Case  of  Garbracht, 
supra,  is  directly  and  distinctly  applicable, 
and  recpiires  us  to  reverse  the  judgment  of 
the  court  below,  unless  there  are  other  facts 


in  the  case  which  distinguish  it  from  that  of 
Garbracht. 

It  is  claimed,  and  it  was  so  held  by  the 
court  below,  that,  because  the  goods  were 
marked  "C.  O.  I).,"  the  sale  was  not  complete 
until  the  delivery  was  iiunle;  and  as  that  took 
place  in  Mercer  county,  where  t  lie  defendant's 
license  was  inoperative,  he  was  witlioiit  li- 
cense as  to  such  sales,  and  became  subject  to 
the  penalty  of  the  criminal  law.  The  argu- 
ment by  which  this  conclusion  w:i3  reached 
was  simply  that  the  payment  of  the  price  was 
a  condition  precedent  to  the  delivery,  and 
hence  there  was  no  delivery  until  payment, 
and  no  title  j)assed  until  delivery.  The  legal 
and  criminal  inference  was,  the  sale  was  made 
in  .Mercer,  and  not  in  Allegheny.  This  rea- 
soning ignores  certain  facts  which  require 
consideration.  The  orders  were  sent  by  the 
purchasers,  in  Mercer,  by  mail  to  the  seller, 
in  Allet;heny,  and  in  the  orders  the  purchas- 
ers requested  the  defendant  to  send  the  goods 
C.  O.  I).  The  well-known  meaning  of  such 
an  order  is  that  the  i)riceof  the  goods  is  to  be 
collected  by  the  carrier  at  the  time  of  the  de- 
livery. The  purchaser,  for  his  own  conven- 
ience, requests  the  seller  to  send  him  the 
goods,  with  authority  in  the  carrier  to  receive 
the  money  for  them.  This  method  of  pay- 
ment is  the  choice  of  the  purchaser,  under 
such  an  order;  and  it  is  beyond  question  that, 
so  far  as  the  puichaser  is  concerned,  the  car- 
rier is  his  agent  for  the  receipt  and  transmis- 
sion of  the  money.  If  the  seller  accedes  to 
such  a  request  by  the  purchaser,  he  certainly 
authorizes  the  purchaser  to  pay  the  money  to 
the  carrier,  and  the  purchaser  is  relieved  of 
all  liabilities  to  the  seller  for  the  price  of  the 
goods  if  he  paj's  the  price  to  the  carrier.  The 
liability  for  the  price  is  transferred  from  the 
seller  to  the  carrier;  and  whether  the  ciurier 
receives  the  price  or  not,  at  the  time  of  deliv- 
ery, he  is  liable  to  the  seller  for  the  price  if  he 
does  deliver.  Substantially,  therefore,  if  the 
delivery  is  made  by  the  carrier,  and  he  chooses 
to  give  credit  to  tiie  puichaser  for  the  pay- 
ment of  the  price,  the  transaction  is  complete, 
so  far  as  the  seller  is  concerned,  ami  the  pur- 
chaser may  hold  the  goods.  Of  course,  if  the 
seller  were  himself  delivering  the  goods  in 
parcels  upon  condition  that  on  delivery  of  the 
last  parcel  the  price  of  the  whole  should  be 
paid,  it  would  be  a  fraud  on  the  seller  if  the 
purchaser,  after  getting  all  the  parcels,  should 
refuse  to  perform  the  condition  upon  which 
he  obt:iined  them,  and  in  such  circumstances 
the  seller  wouUI  be  entitled  to  recover  the 
goods.  This  was  the  case  in  Henderson  v. 
Laiick,  21  Pa.  St.  3.V.).  The  court  helow,  in 
that  case,  expressly  charged  that  if  the  seller 
relied  on  the  promise  of  the  purchaser  to  pay, 
and  delivered  the  goods  absolutely,  the  right 
to  the  property  was  changed,  although  the 
conditions  were  never  performed:  but  if  ho 
relied,  not  on  the  promise,  but  on  actual  pay- 
ment at  the  delivery  of  the  last  load,  he  might 
reclaim  the  goods  if  tlie  money  was  not  ]iaid. 
The  case  at  bar  is  entirely  dilTerent.    So  fur 


176 


COMMONWEALTH  v.  FLEMING. 


as  the  seller  is  concerned,  be  is  satisfied  to 
take  the  responsibility  of  the  carrier  for  the 
price,  in  place  of  that  of  the  seller.  He  au- 
thorizes the  purchaser  absolutely  to  pay  the 
price  to  the  carrier;  and,  if  he  does  so,  un- 
donbteilly  the  piircluiser  is  relieved  of  all  re- 
sponsibility for  the  price,  whether  the  carrier 
ever  pays  it  to  the  seller  or  not.  lint  the  car- 
rier is  also  authorized  to  deliver  the  goods. 
If  he  does  so,  and  receives  the  price,  lie  is  of 
course  liable  for  it  to  the  seller.  But  he  is 
equally  liable  for  the  price  if  he  chooses  to  de- 
liver the  goods  without  receiving  the  price. 
It  cannot  be  questioned  that  the  purchaser 
would  be  liable  also;  but,  as  he  had  received 
the  goods  from  one  who  was  authorized  to  de- 
liver them,  his  right  to  hold  them  even  as 
against  the  seller  is  undoubted.  In  other 
words,  the  direction  enil)odied  in  the  letters 
"C.  O.I).,"  placed  upon  a  package  committed 
to  a  carrier,  is  an  order  to  the  carrier  to  col- 
lect the  money  for  the  package  at  the  time  of 
its  delivery.  It  is  a  part  of  the  undertaking 
of  the  carrier  with  the  consignor,  a  violation 
of  which  imposes  upon  the  carrier  the  obliga- 
tion to  pay  the  price  of  the  article  delivered, 
to  the  consignor.  We  have  been  referred  to 
no  authority,  and  have  been  unable  to  discov- 
er any,  for  the  proposition  that  in  such  a  case, 
after  actual,  absolute  delivery  to  the  purchas- 
er by  the  carrier  without  payment  of  the 
price,  the  seller  could  reclaim  the  goods  from 
the  purchaser  as  upon  violation  of  a  condition 
precedent. 

If,  now,  we  pause  to  consider  the  actual 
contract  relation  between  the  seller  and  pur- 
chaser, where  the  purchaser  orders  the  goods 
to  be  sent  to  him  C.  O.  B.,  the  matter  be- 
comes still  more  clear.  Upon  such  an  order, 
if  it  is  accepted  by  the  seller,  it  becomes  the 
duty  of  the  seller  to  deliver  the  goods  to  the 
carrier,  with  instruction  to  the  carrier  to  col- 
lect the  price  at  the  time  of  delivery  to  the 
jiurchaser.  In  such  a  case  it  is  the  duty  of 
the  purchaser  to  receive  the  goods  from  the 
carrier,  and,  at  the  time  of  receiving  them, 
to  pay  the  price  to  the  carrier.  This  is  the 
whole  of  the  contract,  so  far  as  the  seller  and 
the  purchaser  are  concerned.  It  is  at  once 
apparent  that  when  the  seller  has  delivered  , 
the  goods  to  the  carrier,  with  the  instruc-  ! 
tion  to  collect  the  price  on  delivery  to  the 
purchaser,  he  has  performed  his  whole  duty 
underthecontract;  he  has  nothing  more  to  do.  I 
If  the  purchaser  fail  to  perform  his  part  of  ( 
the  contract,  the  seller's  right  of  action  is 
coinpUtp;  and  he  may  recover  the  price  of  the 
goods  from  the  purcliaser,  where  the  pur- 
chaser takes,  or  refuses  to  take,  the  goods  , 
from  the  carrier.  Hence  it  follows  that  the 
passage  of  the  title  to  the  purchaser  is  not 
essential  to  the  legal  completeness  of  the  con- 
tract of  sale.  It  is,  in  fact,  no  more  than  the 
ordinary  case  of  a  contract  of  sale,  wherein 
the  seller  tenders  delivery  at  the  time  and 
place  of  delivery  agreed  upon,  but  the  pur- 
chaser refuses  p.rlormauce.  In  such  case  it 
is  peifectly  familiar  law  that  the  i)urchaser 
is  legally  iialjle  to  pay  the  price  of  the  goods 


'  although,  in  point  of  fact,  he  has  never  had 
them.  The  order  to  jiay  on  delivery  is 
merely  a  superadded  term  of  the  conti'tict; 
but  it  is  a  term  to  be  perlormed  by  the  pur- 
chaser, and  has  no  other  effect  upon  the  con- 
tract than  any  other  term  affecting  the 
factum  of  delivery.  It  must  be  performed 
'  by  the  purchaser.  Just  as  the  obligation  tore- 
'  ceive  the  goods  at  a  particular  time  or  a  par- 
ticular place.  Its  non-performance  is  a  breach 
by  the  purchaser,  and  not  by  the  seller,  and 
therefore  cannot  affect  the  right  of  the  seller  to 
regard  the  contract  of  sale  as  complete,  and 
completely  performed  on  his  part,  without 
any  regard  to  the  question  whetln-r  the  title  to 
the  goods  has  passed  to  the  purchaser  as  upon 
an  aitual  reception  of  the  goods  by  him.  If 
this  be  so,  the  case  of  the  commonwealth  falls 
to  the  ground,  even  upon  the  most  critical 
'  consideration  of  the  contract  between  the  jiar- 
ties,  regarded  as  a  contract  for  civil  purposes 
only.  The  duties  which  lie  intermediate  be- 
tween those  of  the  seller  and  those  of  the 
purchaser  are  those  only  which  pertain  to, 
and  are  to  be  performed  by,  the  carrier. 
These,  as  we  have  before  seen,  are  the  ordi- 
nary duties  of  carriage  and  delivery,  with 
the  additional  duty  of  receiving  the  price 
from  the  purchaser,  and  transmitting  it  to 
the  seller.  Tlie  only  decided  case  to  which 
we  have  been  referred  which  presents  the  ef- 
fect of  an  order  C.  O.  D.  to  a  carrier  is  Hig- 
gins  V.  Murray,  73  N.  Y.  252.  There  the 
defendant  enii)lo3'ed  the  plaintiff  to  manu- 
facture for  him  a  set  of  circus  tents.  When 
they  were  finished,  the  plaintiff  shijiped  them 
to  the  defendant  C.  O.  1).,  and  they  were  de- 
stroyed by  fire  on  the  route.  It  was  held  that 
the  defendant,  who  was  the  purchaser,  should 
bear  the  loss;  that  the  plaintiff  had  a  lien  on 
the  tents  for  the  value  ot  his  labor  and  ma- 
terials, and  his  retaining  his  lien  by  shipping 
them  C.  O.  D.  was  not  inconsistent  with,  and 
did  not  affect,  his  right  to  enforce  the  de- 
fendant's liability.  In  the  course  of  the 
Opinion,  Chief  .Tustico  Church  said:  "Sup- 
pose, in  this  case,  that  the  defendant  had  re- 
fused to  accept  a  delivery  of  the  tent,  his  lia- 
bility would  have  been  the  same,  although 
the  title  was  not  in  him.  The  plaintiff  had 
a  lien  upon  the  article  for  the  value  of  his 
labor  and  materials,  which  was  good  as  long 
as  he  retained  possession.  *  *  *  Retain- 
ing the  lien  was  not  inconsistent  with  his 
right  to  enforce  the  liability  for  which  this 
action  was  brought.  That  liability  was  com- 
pl'te  when  the  request  to  ship  was  made  by 
the  defendant,  and  was  not  affected  by  com- 
plying with  the  request,  nor  by  retaining  the 
lien  the  same  as  when  the  request  was  made. 
As  the  article  was  shipped  at  the  request  of, 
and  for  the  benelitof,  tlie defendant,  (assum- 
ing that  it  was  done  in  accordance  with  tlie 
directions,)  it  follows  that  it  was  at  his  risk, 
and  could  not  impair  the  right  of  the  plain- 
tiff to  recover  for  tlie  amount  due  him  upon 
the  performance  ot  his  contract.  *  *  * 
As  before  stated,  the  point  as  to  who  had  the 
title  is   not  decisive.     It  may  be  admitted 


COMMONWEALTU  c.  FLEMING. 


177 


tli:it  the  plaintiff  retained  the  title  as  secu- 
rity for  the  debt,  and  yet  the  defendant  was 
liable  for  the  debt  in  a  proper  personal  ac- 
tion." It  seenis  to  us  this  reasoning  is  per- 
fectly sound.  Practically,  it  was  ruled  that 
the  effect  of  the  order  C.  O.  D.  was  simply 
the  retention  of  the  seller's  lien,  and  that 
such  retention  of  lien  is  not  inconsistent 
with  a  right  of  recovery  for  the  price  of  the 
article,  thoiiiih,  in  point  of  fact,  it  is  not  de- 
livered to  tlio  purchaser.  In  other  words, 
the  literal  state  of  the  title  is  not  decisive  of 
the  question  of  liability  of  the  purchaser,  and 
he  may  be  compelled  to  pay  for  the  article, 
though  he  never  received  it  into  his  actual 
possession.  The  cliief  justice  propounds  the 
very  question  suggested,  heretofore,  of  a  re- 
fus;d  by  the  purchaser  to  accept  the  article, 
and  holds  that  his  liability  would  be  the 
same,  though  the  title  was  not  in  him. 

In  Ilutcliinson  on  Carriers,  at  section  389, 
the  writer  thus  states  the  position  and  duty 
of  the  carrier:  "The  carrier  who  accepts  the 
goods  with  such  instructions  [C.  O.  D.]  un- 
dertal<es  that  they  shall  not  be  delivered  un- 
less the  condition  of  payment  be  complied 
with,  and  becomes  the  agent  of  the  shipper 
of  the  goods  to  receive  such  payment,  lie 
therefore  undertakes,  in  addition  to  his  duties 
as  carrier,  to  collect  for  the  consignor  the 
price  of  Ins  goods."  And  again,  in  section 
39U:  "W'luni  the  goods  are  so  received,  the 
carrier  is  held  to  a  strict  compliance  with 
such  insti  uctions;  and,  if  tlie  goods  are  de- 
livered without  an  exaction  from  the  con- 
signee of  the  amount  which  the  carrier  is  in- 
structed to  collect,  he  becomes  liable  to  Ihe 
consignor  for  it."  This  is  certainly  a  correct 
statement  of  the  position  and  liability  of  the 
carrier,  lie  becomes  sulijcct  to  an  added 
duty. — that  of  collection;  and,  if  he  fails  to 
perform  it,  he  is  liable  to  the  seller  for  the 
price  of  tlio  goods.  We  have  searched  in 
vain  for  any  text-writer's  statement,  or  any 
decision,  to  the  effect  that  in  such  case  no 
title  passes  to  the  purchaser.  AVe  feel  W'ell 
assured  none  such  can  be  found.  But,  if 
this  be  so,  the  whole  theory  that  the  title 
does  not  pass  if  the  money  is  not  paid  falls, 
and  the  true  legal  status  of  the  parties  re- 
sults that  the  seller  has  a  remedy  for  the 
price  of  his  gooils  again.-t  the  carrier.  In 
other  words,  an  order  from  a  seller  to  a  car- 
rier to  collect  on  delivery,  accepted  by  the 
carrier,  creates  a  contract  between  the  seller 
and  the  carrier,  for  a  breach  of  wliich  by  the 
carrier  the  seller  may  recover  the  price  from 
him.  So  far  as  the  seller  and  purchaser  are 
concerned,  the  latter  is  liable,  whether  he 
takes  the  goods  from  the  carrier  or  not,  and 
the  order  itself  is  a  mere  jirovision  for  the 
retention  of  the  seller's  lien.  While,  if  the 
goods  are  not  delivered  to  the  purchaser  by 
the  carrier,  the  title  does  not  pass,  that  cir- 
cumstance does  nut  affect  the  character  of  the 
transaction  as  a  sale;  and  the  right  of  the 
seller  to  recover  the  price  from  the  purch;iser, 
if  he  refuse  to  take  them,  is  as  complete  as 
if  he  had  taken  them,  and  not  paid  for  them. 

LAW  SAI.hS— U 


Thus  far  we  have  regarded  thr^  transactions 
between  the  parties  in  its  aspect  as  a  civil 
contract  only;  but,  when  viewed  in  its  as- 
pect as  the  source  of  a  criminal  prosecution, 
the  transaction  becomes  much  more  clear  of 
doubt.  It  is  manifest  that,  when  the  pur- 
chaser ordered  the  goods  to  be  sent  to  hira 
C.  O.  D.,  he  constituted  the  carrier  his  agent, 
both  to  receive  the  goods  from  the  seller,  and 
to  transmit  the  price  to  the  seller.  When, 
therefore,  the  goods  were  delivered  to  the 
carrier  at  Pittsburgh  for  the  purpose  of  trans- 
portation, the  duty  of  the  seller  w:ia  per- 
formed, as  we  h;ive  already  seen,  so  far  as 
he  and  the  purchaser  were  concerned,  and  as 
between  them  the  transaction  was  complete. 
The  duty  of  transpartation  devolved  upon 
the  carrier,  and  for  this  he  was,  in  one  sense, 
the  agent  of  the  seller,  as  well  as  of  the  pur- 
chaser; but,  as  it  was  to  be  at  the  expense 
of  the  purchaser,  the  delivery  to  the  cjirrier 
was  a  delivery  to  the  purchaser;  and  this 
was  ruled  In  Garbracht's  Case.  The  injunc- 
tion to  the  carrier  to  collect  the  money  on  de- 
livery imposed  an  additional  duty  on  the  car- 
rier, which  the  carrier  was,  of  course,  bound 
to  discharge.  This  arrangement  was  a  mat- 
ter of  convenience,  both  to  the  purchaser  and 
the  seller,  relative  to  the  payment  and  trans- 
mission of  the  price;  butthatisall.  Tocon- 
vert  this  entirely  innocent  and  purely  civil 
convention,  resperting  the  mode  of  collect- 
ing the  price  of  the  goods,  into  a  crime,  is, 
in  our  judgment,  a  grave  perversion  of  the 
criminal  law,  to  which  we  cannot  assent.  As 
a  matter  of  course,  there  is  an  utter  absence 
of  any  criminal  intent  in  the  case.  The  de- 
fendant had  a  license.  The  sale  was  made 
at  his  place  of  business,  and  both  the  sale 
and  delivery  were  completed  within  the  ter- 
ritory covered  by  the  license.  If,  now,  a 
criminal  character  is  to  be  given  to  the  trans- 
action, it  must  be  done  by  means  of  a  tech- 
nical inference  that  the  title  did  not  pass  un- 
til the  money  was  paid;  and  thus  that  the 
place  of  sale,  which  in  point  of  fact  was  in 
Allegheny  county,  was  changed  to  Mercer 
county,  where  no  sale  was  made.  Even 
granting  that,  in  order  to  conserve  the  ven- 
dor's lien,  such  a  technical  inference  would 
be  justilied  for  the  purpo.ses  of  a  civil  con- 
tract, it  l>y  no  means  follows  that  the  plain 
facts  of  the  case  must  bo  clothed  with  a  crim- 
inal consequence  on  that  account.  So  far  as 
the  criminal  law  is  concerned,  it  is  only  an 
actual  sale  without  license  that  is  prohibit- 
ed. 15ut  there  was  no  such  sale,  because  all 
the  essential  facts  which  constitute)!  the  sain 
transpired  in  Allegheny  county,  where  the 
defendant's  license  was  operative.  The  car- 
rier, being  the  agent  of  the  purch-aser  to  re- 
ceive the  goods,  does  receive  them  from  the 
seller  in  Allegheny  county,  and  the  delivery 
to  him  for  the  purpose  <if  transport.it ion  was 
a  delivery  to  the  jiurchaser.  This  is  the  le- 
gal, and'certainlv  the  eouiraon,  understand- 
ing of  a  sale.  The  statute,  being  criminal, 
must  be  strictly  construed;  and  only  those 
acts  which  are  plainly  within  its  meaning. 


178 


COMMONWEALTH  v.  FLEMING. 


according  to  the  common  understanding  of 
men,  can  be  reg.'xrded  as  proliibiteil  criminal 
acts.  We  ciinnot  consider,  tlierefdre,  tliat  a 
mere  undertaking  on  the  part  of  the  carrier 
to  collect  tlie  price  of  the  goods  at  the  time 
of  his  delivery  to  the  purchaser,  though  the 
payment  of  the  price  be  a  condition  of  the 
delivery,  can  sullice  to  convert  the  seller's 
delivery  to  the  carrier  for  transportation  and 
collection  into  a  crime.  We  therefore  hold 
that  the  sales  made  by  the  defendant  upon 


orders,  C.  O.  D.,  received  from  the  purchasers 
were  not  in  violation  of  the  criminal  statute 
against  sales  without  license,  and  the  con- 
viction and  sentence  in  the  court  below  must 
be  set  aside.  The  judgment  of  tlie  court  of 
quarter  sessions  is  reversed,  and  the  defend- 
ant is  discharged  from  his  recognizance  up- 
on this  indictment. 

Williams,  J.,  delivered  a  dissenting  opin- 
ion. 


COMMONWEALTH  p.  MIM.F.R. 


181 


COMMO>m'EAI/rH,     to     Use     of     ALLE- 
GHENY COL'NTY  et  al.,  v.  MILLER. 

(18  Atl.  Rep.  938,  131  Pa.  St.  118.) 

Supreme  Court  of  Pennsylvania.    Jan.  6,  ISOO. 

Appeal  from  court  of  common  pleas,  .\lle- 
glieny  county. 

Before  Pa.xson,  C.  J  ,  Steriiktt,  Giief.n, 
Clauk.  Williams,  McCollum  and  Mitch- 
ell, .JJ. 

John  S.  Ferguson,  for  appellant.  John 
Rebmnn,  Jr.,  and  William  Yost,  for  the  Com- 
uionwealtli. 

Clahk,  .T.  The  defendant  is  the  proprie- 
tor of  a  restaurant  in  the  city  of  Pittsburgh. 
Ills  business  consists,  in  part,  in  furnishing 
meals  to  transient  and  regular  patrons,  who 
pay  for  the  same  daily  or  by  the  meal,  accord- 
ing to  the  ordinary  usage  in  that  business. 
From  the  facts  set  forth  in  the  case  stated 
it  appears  that  on  the  31st  of  .January,  1889, 
William  McKay  and  (Jeorge  Spence  called  at 
this  restaurant  and  ordered  meals,  which  were 
served  to  them  in  the  usual  manner.  Among 
other  food  furnished  by  the  defemlant  on  this 
occasion  was  a  small  nuantity  of  what  ap- 
peared to  be  butter,  but  which  in  fact  was 
oleomargarine,  an  article  of  manufacture  and 
sale  which  is  prohibited  by  the  act  of  May  21, 
1885,  P.  L.  22,  entitled  "An  act  for  the  protec- 
tion of  the  public  health,  and  to  prevent  adul- 
teration of  dairy  products,  and  fraud  in  the 
sale  thereof."  P.  L.  22.  It  is  admitted  that 
this  oleomargarine  was  furnished  for  food,  as 
an  imitation  of  butler,  and  that  it  was  design- 
ed to  take  the  place  of  butter  in  the  meals  thus 
served.  McKay  and  Spence,  having  partaken 
of  the  food  served  to  them,  paid  each  50  cents 
for  their  meals,  "including  said  small  dish  of 
oleomargarine,"  which,  however,  for  some 
reason  they  did  not  eat,  but  carried  the  same 
away,  pnsumably  for  examination.  This 
suit  is  brought  to  recover  the  penalty  pro- 
vided in  the  third  section  of  the  act,  for  the 
manufacture  or  sale  of  the  prohibited  article, 
and  the  single  question  for  our  determination 
is  whether  or  not,  under  the  facts  stated, 
there  was  a  sale  of  the  oleomargarine,  with- 
in the  meaning  of  the  act  referred  to.  The 
l)urpose  of  the  art  is  expressed  in  the  title. 
It  is  to  prevent  the  aiulteration  of  dairy 
products,  and  fraud  in  the  sale  thereof,  and 
to  protect  tlie  public  health.  It  is  plain 
that  the  exact  legislative  intent  was  to  pre- 
vent the  sale,  and  thereby  prevent  tlie  use  of 
these  adulterations  and  admixtures  as  arti- 
cles of  food.  It  was  the  use,  as  food,  and 
the  frauds  perpetrated  upon  the  public  in  the 
sale,  which  was  the  mischief  to  be  remedied: 
and  the  statute,  of  course,  must  be  construed 
with  reference  to  the  old  law,  the  mischief, 
and  the  remedy.  That  the  food  furnished  to 
McKay  and  Spence,  or  so  much  of  it  as  they 
saw  lit  to  appropriate,  was  sold  to  them,  can- 
not be  reiisonably  questioned.  When  it  was 
set  before  them,  it  wiis  theirs  to  all  intents 


and  purposes,  to  eat  all,  or  a  part,  as  they 
chose,  subject  only  to  the  renlaiiraterir't 
right  to  receive  the  price,  which  it  is  admit- 
ted was  promptly  paid.  They  might  not  eat 
all  of  the  article  set  before  them,  but  they 
had  an  undoubted  right  to  do  so:  and,  even 
assuming  that  the  meal  is  the  portion  of  food 
taken,  in  the  sense  stated,  the  transaction 
must  be  regarded  as  a  sale  wholly  within  the 
purport  and  meaning  of  the  statute.  It  is 
certain  that  the  oleomargarine  comptosed  a 
part  of  the  meal,  the  price  of  which  wus  paid, 
and  was  embraced  in  the  transaction  as  an 
integral  part  thereof.  If  an  unlicensed  keej)- 
er  of  a  restaurant  may  set  before  his  guests 
a  bottle  of  wine  or  other  intoxicating  liquor, 
charging  a  regular  price  for  the  same,  with 
other  articles  of  food  furnished,  with  liljerty 
to  take  much  or  little  of  the  liquor  as  the 
guest  may  choose,  or,  failing  to  drink  it  with 
his  meal,  permit  him  to  lake  it  away  with 
him,  then  the  liquor  laws  of  the  common- 
wealth are  of  no  avail,  and  the  license  to  sell 
liquor  is  wholly  unnecessary.  When  the  liq- 
uor is  thus  furnished  and  paid  for,  it  is  in 
legal  effect  a  sale,  for  the  very  act  has  been 
done  which  it  is  the  policy  of  the  law  to  pre- 
vent, and  which  it  characterizes  as  a  crime, 
viz.,  furnishing  intoxicating  liquors  at  a 
price  which  is  jiaid.  So,  in  this  citse,  the 
oleomargarine  was  furnislied  to  the  person 
named  as  food,  and  the  price  was  paid.  As 
the  learned  judge  of  the  court  below  well 
said,  it  was  not  given  away,  and  the  fact 
that  it  was  not  sold  separately,  but  with  oth- 
er articles,  for  a  gros.s  sum,  would  not  make 
it  less  a  sale.  It  therefore  comes  within  the 
letter  of  the  law,  and  it  is  also  within  its 
spirit.  If  the  use  of  such  articles  is  injuri- 
ous, it  would  seem  to  be  especially  wilhin 
the  spirit  of  the  act  to  prohibit  public  cater- 
ers from  selling  them  to  their  guests  as  part 
of  an  ordinary  meal.  Penal  statutes  are  to  be 
strictly  construed,  hut  both  the  letter  and  the 
spirit  "of  the  act  of  1885  cover  this  c»ise,  and 
we  think  the  judgment  was  properly  entered. 
Judgment  aihrmed. 

Paxson,  C.  J.,  (dissenting.)  I  am  unwill- 
ing to  be  held  responsible  for  this  judgment, 
and  therefore  dissent.  I  am  opposed  to  ex- 
tending iienal  laws  beyond  their  plain  and 
obvious  meaning.  I  am  of  opinion  that  the 
act  of  21st  May,  1885.  (P.  L.  22,)  prohibiting 
the  sale  of  the  article  of  food  known  as  "oleo- 
margarine," was  intended  to  apply  only  to 
dealers,  or  persons  engaged  in  the  sale  there- 
of in  the  line  of  their  business.  When  the 
legislature  used  the  word  "sale,"  it  is  fair  to 
assume  that  it  was  employed  in  the  sense  in 
which  it  is  popularly  understood.  If  it  was 
the  intention  not  only  to  prohibit  sales  of 
oleomargarine,  but  also  its  use  as  an  article 
j  of  food,  or  in  the  preparation  of  foo<l,  by  pro- 
prietors of  eating-houses,  restaurants,  and 
hotels,  it  was  ea.sy  to  have  said  so  in  express 
I  terms.  As  the  act  stands,  there  is  nothing 
I  to  warn  the  defendant  that  lie  violated  it  by 
I  placing  oleomargarine  on  his  table  as  an  ar- 


182 


COMMOXWEALTH  v.  MILLER. 


tide  of  food.  I  am  unable  to  see  how  the 
legal  or  the  popular  meaning  of  the  word 
"sale"  will  support  this  judgment.  A  sale 
is  the  transfer  of  the  title  to  property  at  an 
agreed  price.  Story,  Sales,  §  1;  Creveling  v. 
Wood,  95  Pa.  St.  152.  1  find  nothing  in  the 
facts,  as  set  forth  in  the  case  stated,  to  justify 
the  conclusion  that  there  was  a  sale  of  the 
oleomargarine.  The  two  individuals  referred 
to  entered  the  defendant's  place  of  business, 
and  ordered  a  meal.  It  was  furnished,  but 
oleomargarine  formed  no  part  of  it.  It  is 
true,  there  was  some  of  that  article  on  the 
table.  They  miglit  have  partaken  of  it,  but 
they  did  not.  When  they  left  they  carried 
the  oleomargarine  away  with  them.  This, 
in  my  opinion,  they  had  no  right  to  do.  A 
guest  at  a  hotel  may  satisfy  his  appetite 
when  he  goes  to  the  table.  He  may  partake 
of  anything  that  is  placed  before  hini,  but, 
after  lilling  his  stomach,  he  may  not  also  hll 
his  pockets,  and  carry  away  the  food  he  can- 


not eat.  This  I  understand  to  be  the  rule  as 
applicable  to  hotels  and  eating-houses  in  this 
country,  and  if  there  is  anything  in  tliis  case 
to  take  it  out  of  its  operation  it  does  not  ap- 
pear in  the  case  stated.  The  illustration  of 
the  bottle  of  wine,  referred  to  in  the  opinion 
of  the  court,  does  not  appear  to  me  a  happy 
one.  Surely,  if  the  proprietor  of  a  hotel 
places  a  bottle  of  wine  before  his  guests,  who 
do  not  partake  thereof,  it  cannot  be  said 
that  it  is  a  sale  of  the  wine,  nor  has  the  guest 
the  right  to  carry  it  away.  He  might  as  well 
carry  olf  the  table  furniture.  It  is  quite  pos- 
sible, under  our  construction  of  the  act  of 
1885,  (see  Powell  v.  Com.,  114  Pa.  St.  265,  7 
Atl.  Rep.  913,)  the  legislature  may  have  the 
power  to  prohibit  the  use  of  oleomargarine 
as  an  article  of  food  in  hotels  and  eating- 
houses,  and  punish  a  landlord  who  places  it 
before  his  guests;  but  this  has  not  yet  been 
done,  and  I  would  not  extend  a  highly  penal 
law  by  implication. 


COX.VEK   c.  IIKNDKUSON. 


185 


CONXKU    V.   IIKNl)i:i!S(1.\. 

(15  Mass.  31!).( 

Supromc  Jiulieial  Court  of  Massachusells.     Es- 
sex.   Nov.  Term,  1818. 

TliiH  was  ail  action  of  the  cawe  in  as- 
8iinii)»<it.  allciritifi  Uiat  the  ilefeiidant  iin- 
<lert(i<)l<  to  Kell  ami  (h'liver  to  the  pliMiitiff 
piKhty-iiine  caskH  of  lime  of  kih>i\  quality  ; 
but  in  fact  ilelivered  liim  eiuh ty -iiiiie  cawks 
of  lime  of  littU!  value,  not  tnerdiantable. 
There  wb!^  a  Heconii  count  much  like  the 
fifHt;  and  a  third  count  for  iiioney  had 
and  received.  Trial  on  t!ie  seneral  issue, 
before  I'utnam  .I.at  the  Hittinii.s  here  after 
the  lUKt  November  term.— The  plaintiff 
I)i-oduccd  the  ilefendaiit's  hill  of  paiceln  of 
Hil  caskti  of  lime  to  the  i)laintil'f  at  lOs. 
amountins  to  US  dollars  aii  centsi.  It  was 
proved  that  thecasUs  were  branded  byone 
I).  .lenks,  .)r.,an  inspector  of  lime,  and 
there  was  satisfactory  evidence  that  the 
contents  of  the  casks  were  of  no  value, 
beinu:  a  mixture  of  sand  and  stones,  and 
wholly  unlit  for  use  as  lime. 

It  was  admitted  by  the  plaintiff,  that  lie 
had  sold  and  cl)ar;j;ed  to  his  customers 
about  thirty  casks,  which  had  not  been 
paid  for,  except  two  which  were  sold  and 
paid  for  at  two  dollars  per  cask,  the 
plaintiff  and  his  customers  then  suppos- 
inK  the  casks  to  contain  good  lime. 

There  was  no  eviilence  of  a  speci.-il  war- 
ranty of  the  defendant  that  the  lime  was 
gooii:  nor  any  evidence  that  he  knew  it 
was  bad.  The  defendant  was  master  of  a 
roastins  vessel,  and  had  received  the 
casks  of  one  U.  Sevey  at  Thoniastown,  to 
cari'y  ou  freight  to  Boston  and  to  sed  on 
Sevey's  account.  1 1  did  not  api)ear  ho w 
ever  that  the  defendant  disclosed  his  prin- 
cipal to  the  plaintiff:  nor  had  this  latter 
returned  the  casks,  which  he  hail  not  sold 
as  aforesaid. 

The  judKe  instructed  the  jury,  that  if 
from  tiie  evidence  they  believed  the  de- 
fendant had  not  practised  Jiny  frauil.  they 
must  (ind  a  verdict  for  him  upon  the  two 
first  counts;  because  the  delivery  of  the 
casks  with  the  inspector's  brand,  together 
with  a  l)ill  of  the  same,  did  not  amount 
to  a  warinnty  of  the  contents,  of  which 
the  defendiiiil  iiii(;ht  beiKnorant: — that  to 
charKe  him  upon  those  counts,  they  must 
Hnd  fraud  or  warranty  on  his  part.  l!ut 
that  in  respect  to  the  count  for  money 
had  and  received,  it  was  recoveralile, 
where  the  money  had  been  received  by  the 


defcndaiit  by  mistake,  or  where  the  con- 
sideration hnd  failed,  allhouirli  no  fraud 
had  been  practised  by  him:  and  if  llipy 
should  lielieve.  from  the  evidence,  that  the 
plaintiff  intended  to  l)uy,  and  the  defend- 
ant to  sell,  Ml  casks  of  lime,  and  not  S9 
casks  witlioiit  lime:  and  that  the  casks, 
which  ho  delivered  did  not  contain  linip 
but  stones  and  stuff  of  no  value;  that  the 
consideration  of  the  contract  had  failtd, 
although  the  defendant  had  no  bad  inten- 
tions; and  the  plaintiff  nii>;ht  receiver  the 
money  he  had  paid  upon  the  coiilrnct, 
and  considi  r  It  as  rescinded,  notwith- 
staiidiiij.'-  he  had  not  redelivered  the  casks 
before  he  brought  his  action,  he  heiiiK  ac- 
countalile  to  the  defendant   for   the  same. 

The  jury  unmd  a  verdict  for  the  defend- 
ant upon  the  two  first  counts,  nn<l  for  the 
plaintiff  upon  the  money  count;  r)n  the 
iironiid  abose  stated  by  the  jud;;e.  .\n<\ 
if  upon  the  fads,  the  plaintiff  was  enti- 
tled, in  the  opinion  of  tliei'ourt. to  recover 
upon  either  of  the  counts,  judgment  was 
to  be  entered  upon  the  verdict:  olherwlse 
it  was  to  be  set  aside,  and  the  plaintiff  to 
b"conie  nonsuit. 

L'ummings,  for  plaintiff.  Phinney,  for 
defendant. 

PKU  CURIAM.  The  evidence  reported 
will  not  maintain  the  action  on  either  o( 
the  two  first  counts.  There  was  no  ex- 
press warranty  respectinj;  the  quality  of 
the  article.— Neither  can  the  plaintiff  re- 
cover on  his  count  for  money  had  ami  re- 
ceiveil.  If  he  woulil  have  rescindeil  the 
contract,  and  so  have  entitled  himself  to 
a  return  of  the  money  paid;  it  was  neces- 
sary that  he  put  the  defendant  in  thesame 
situation  he  was  in  before  the  delivery  of 
the  article.  This  w;is  settled  in  the  case 
of  Kiinliall  vs.  Cnnniimham.  4  .Maws.  M'J, 
and  nltlioii«h  the  iirineipal  subject  of  the 
contract  in  the  present  case  may  lie  pre- 
sumed, from  the  evidence  reported,  to 
have  been  absolutely  of  no  value,  and  so 
the  returning  of  it  would  have  been  lint 
an  idle  act;  yet  the  casks  were  of  some 
value,  and  should  have  been  restored,  if 
the  ])laintiff  would  treat  the  sale  as  a 
nullity,  and  dem.-ind  iiis  money,  as  paid 
without  consideration. 

We  think,  however,  that  an  action  may 
be  framed,  in  which  the  plaintiff  may  re- 
cover, on  the  evidence  reported.  He  may 
tlierefore  file  a  new  declaration,  on  which 
atrial  may  be  had:  but  he  cannot  have 
his  costs  arising  prior  to  the  present  time. 


COOKE  V.  MILLAKD. 


1«7 


COOKE  V.  MILLARD. 

(Co  X.  Y.  352.) 

Commission   of  Appeals  of  Kew   York.     1875. 

Action  to  recover  thepriceof  certain  lum- 
ber hoIiI  and  tlelivereiJ.  Tlie  rfferee  found 
that  pinintiffij  were  copartners  and  vvliole- 
Hale  lumber  rnercliantH.  and  proiirictors  of 
a  |)laninun)ill,  at  Whiteliall,  .\.  Y.,  and 
defendants  were  partners  and  luiiilier  nier- 
cliantH.  at  New  llanilmrKli,  on  the  Hud- 
son. Tlie  course  of  husinesH  is,  tliat  the 
lunilier  is  sliipped  from  Wliiteliall  l>ycanal 
to  Troy,  and  thenco  to  New  liainhur^^li 
by  the  Hudson  river.  t)n  tlie  .">tl)  day  of 
Sept.,  INC."),  the  defendants  desiring  to  pur- 
chase certain  kind-iof  luinlier,  were  sliown 
by  the  plaintiff  the  lurnher  tlieii  in  tlx'ir 
yard  at  Whiteliall.  This  was  of  the  de- 
sired quality,  l)Ut  needed  to  liedressed  and 
cut  into  tlio  different  sizes  which  fliey 
wished.  There  was  much  more  lumlier 
in  the  yard  shown  to  the  defendants  than 
was  requisite  lor  their  pur[)08es.  The  de- 
fendants thereupon  orally  gave  to  the 
plaintiffs  an  or<ler  for  certain  quantities 
and  sizes  of  lumber,  at  specified  prices, 
atuounting  in  the  whole  to  $'.tlS.L'2.  A 
meniurandum  of  the  order  so  agreed  to 
was  made  l)y  the  plaintiffs,  but  was  not 
subscribed  b.v  any  one.  No  particular 
lumber  was  selected  or  set  apart  to  till 
the  order,  nor  was  any  part  of  it  tlien  in 
condition  to  be  ac''epte<l  or  delivered. 
The  defendants  told  the  plaintiffs  that 
Percival,  a  forwarder  at  Whitehall,  would 
send  a  boat  to  take  the  lumber,  when  no- 
tified that  it  was  ready  to  be  delivered. 
Percival,  duriuE  the  same  season,  and 
prior  to  Sept.  .").  had  taken  up  a  boat  for 
the  defendants,  and  shipped  a  part  of  a 
load  of  lumber  from  the  plaiiitiffK'  dock, 
making  up  the  residue  from  his  own  yard. 
He  had  frequently  shijiped  lumber  for  the 
defendants.  By  the  course  of  trade,  a 
bout  could  not  be  obtained  to  carr.v  a 
part  of  a  load  of  lumber  from  Whiteiiall 
to  New  Hamburgh,  except  for  the  [irice  of 
a  full  load.  To  avoid  paying  such  full 
price,  arrangements  had  to  be  made  to  fill 
out  the  load.  The  defendants  knew  of 
this  when  they  made  the  ordvr  of  .Sept.  .">. 
The  order  oidy  amounted  to  one-half  a 
boat-load.  I'ercival  then  had  a  pile  of 
lumber  (seventeen  thousand  six  hundred 
and  seven ty-one  feet  of  culls)  to  ship  to 
the  defendants,  which  was  no  part  of  the 
lumlter  to  be  dressed  by  plaintiffs.  The 
lumber  ordered  on  .Sept..')  was  to  be  taken 
from  the  lots  examined  by  the  defendants, 
and  the  lumber  dressed  and  piled  on  the 
plaintiffs'  dock,  was  all  taken  from  the 
lumber  shown.  After  the  oral  order  de- 
fendants went  into  the  lumberyard  with 
the  plaintiffs'  foreman.  .Martin,  and  point- 
ed out  to  him  someof  the  i)iles  from  wl'.ich 
they  desired  the  lumber  to  lie  manufac- 
tured, and  directed  plaintiffs  to  put  the 
lumber,  when  ready,  on  plaintiffs'  d<n'k 
and  to  notify  Percival;  and  told  plaintiffs 
that  when  this  was  done.  I'ercival,  who 
was  also  a  luuil>er  dealer,  would  take  up 
a  boat  and  ship  the  lumber,  and  make  out 
the   load   from    his  yard.      Subseciuently, 


I  the  l.")th  of  .Sept.,  the  lumber  linvine;  bi-en 
prepareil    and    dressed,   aciording   to   the 

I  oral  agreement,  it  was  piled  u|Mni  the 
dock  of  the  plaintiffs  nt  Whitehull,  along 
the  front  of  the  planing-inill,  and  was,  on 
the    Kith    of    that    month,    n.eaHun-d    by 

j  rilainliffs,  and  was  in  all  respects  readyfoV 
delivery    by    them,  according   to  the  oral 

I  agreement. 

The  plaintiffs,  on  the  snine  day,  gave 
notice  to  Percival  that  the  lumber  was 
ready  for  delivery,  and  re<|iiested  him  to 
send  a  boat  and  take  it  away.  Percival 
had  not  been  notilied  that  he  was  to  ship 
the  lumlier,  and  paid  no  attention  to  tlie 
notice  given    him    by    pluintirfs.      On    the 

,  other  hand,  the  plaintiffsdid  not  ascertain 

j  that  Percival  did  not  know  of  the  arninge- 
nient.  which  the  defendants  hud  tulil  them 
they  would  make  with  I'ercival  nsto  ship- 
ping the  lumber,  until  after  the  H re  here- 
inafter mentioned.  On  the  ne\t  day.  Sun- 
day, the  lumlier  being  still  on  the  dock,  art 
it  was  at  the  time  I'ercival  was  mititied, 
wasc<inHumed  by  an  accidental  Hre.  with 
the  planing-mill  and  much  other  property'. 
Judgment  far  defemlant. 

.Martin  \V.  Cooke,  for  appellaots. 
Thompson  &  Weeks,  for  respondents. 

DWIGIIT,  C.  No  exceptions  were  taken 
in  this  cause,  except  to  the  conclusions  of 
law  derived  by  the  referee  frnni  the  tacts 
astound  in  the  report.  There  are  tint  two 
questions  to  be  considereil :  One  Is, 
whether  the  contract  is  within  the  statute 
of  frauds ;  the  other  is,  if  it  be  lield  that  it 
is  within  the  statute,  were  the  acts,  done 
by  the  [larties,  sulticient  to  I'ouiply  with 
it's  terms,  so  as  to  make  the  contract  en- 
forceable in  a  court  of  justice? 

In  order  to  determine  whether  the  con- 
tract is  within  the  statute, it  is  ini|iortnnt 
briefly  to  state  the  exact  acts  which  the 
Iilaintiffs  were  to  perform. 

The  contract  was  plaiul.v  executory  In 
its  nature.  There  were  no  specific  articles 
upon  which  tli"  minds  of  the  liuy«'r  and 
seller  met,  so  that  it  could  be  ailirmed 
that  a  title  passed  at  the  time  of  the  con- 
tract. The  seller  was  to  select  fniiii  the 
mass  of  lumber  in  his  yard,  certain  por- 
tioi^s  that  would  comply  with  the  buyer's 
iinler.  The  purposes  of  the  parties  could 
not  even  be  accomplished  by  the  process  o( 
se'ection.  The  lumber  must  be  put  in  n 
condition  to  answer  the  order.  It  must 
lie  dresse<l  and  cut  into  required  sizes. 
The  contract  called  for  distinct  parcels  of 
surface  pine  boards,  clapboardn  and 
matched  ceiling.  I'art  of  the  lumber  was 
surfaced,  and  a  portion  of  it  still  in  the 
rough.  The  clapboanls  were  ma-Mifac- 
tured  from  stuff  one  and  a  (iiiariei-inrh 
thick.  It  had  to  be  split,  surfaced  and 
rabbeted.  The  or<ler  for  the  various  items 
was  a  single  one,  there  being  tifteen  thou- 
sand four  hundied  anil  forty-one  feet  of 
the  surface  pine,  ten  thousand  one  hun- 
dred and  forty-four  feet  of  clapbiinrds, 
andeight  thousand  feet  of  inatchetl  ceiling. 
The  surface  boards  and  the  ceiling  were  In 
existence,  ami  only  needed  die.sslng  to 
comply  with  the  onler.  Whether  the 
clapboards  can  be  ileeiucd  to  have  been  in 


188 


COOKE  V.  MILLARD. 


<>xistonce  may  iie  more  doubtful.  It  a 
part  of  the  order  is  within  tlic  Htatiite  of 
frjinds.  anil  a  portion  of  it  witlioiit  it,  tlie 
whole  transaction  I'.iust  he  deemed  to  be 
within  it,  aw  an  entire  contraet  cannot,  in 
thi.s  ease,  be  divided  or  apportioned. 
Coulee  V.  'I'oniliH,  2  Annt.  420;  Cliater  v. 
Beckett,  7  T.  K.  L'Ol  ;  Mechelen  v.  Wallace, 
7  A.  &  E.  4'.);  Thonian  v.  Williams,  lu  B. 
&  C.  ()(i4;  Looniis  v.  NewhaM.  lo  IMcU.  l.")l. 
I  thinlv  it  clear  that  the  contract  was  in 
its  nature  entire.  It  was  in  evidence  that 
the  intention  was  to  liuy  enough,  in  con- 
nection with  what  Percival  had  on  hand, 
to  make  up  a  bout-load.  This  coulil  only 
be  acconi|)lished  b3'  usiny;  the  entire 
amount  of  the  or<ler.  Acc<jrdinKly  even  if 
the  contract  for  the  clapboards  was  not 
a  sale,  it  cannot  be  separated  from  the 
rest  of  the  order,  and  the  eases  above  cited 
are  applicable. 

The  question  is  thus  reduced  to  the  fol- 
lowing proposition:  Is  a  contract  w  hich 
is,  in  forni,  one  of  sale  of  lumber  then  in 
existence  for  a  fixed  price,  where  the  seller 
aerees  to  put  it  into  a  state  ni  fitness  to 
fill  the  order  of  the  p\irchaser,  his  work 
being  included  in  the  price,  in  fact  a  con- 
tract for  work  and  labor  and  not  one  of 
sale,  and  accordingly  not  within  the  stat- 
ute of  frauds? 

The  New  York  statute  is  made  applica- 
ble to  the  "'sale  of  any  goods,  chattels  or 
things  in  action,"  for  the  price  of  .foO  or 
more.  The  words  "goods  and  chattels" 
are,  literally  taken,  probably  more  com- 
prehensive than  the  expressions  in  the 
English  statute,  "goods,  wares  and  mer- 
chanrlise."  It  will  be  assumed  however 
in  this  discussion,  that  they  are  etjuiva- 
lent. 

There  are  at  least  three  distinct  views 
as  to  the  nisaning  of  the  words  in  the 
statute.  These  may  be  called,  for  the 
sake  of  convenience,  the  English,  the  Mas- 
Haehusetts  and  the  New  York  rules,  as 
representing  the  deci.sionsin  the  respective 
courts. 

The  English  rule  lays  especial  stress  up- 
on the  ))oint,  whether  the  articles  bar- 
gained for  can  be  regarded  as  goods  capa- 
ble of  sale  by  the  professed  seller  at  the 
time  of  delivery,  without  any  reference  to 
the  imjuiry  whether  they  were  in  existence 
at  the  time  of  the  contract  or  not.  If  a 
manufacturer  is  to  produce  an  article 
whicii  at  the  time  of  the  ileli\ery  could  be 
the  subject  of  sale  liy  him,  the  case  is 
within  the  statute  of  frauils.  The  rule 
excludes  all  cases  where  work  is  done  up- 
on the  goods  of  another,  or  even  materials 
supidied  or  added  to  the  goods  of  an- 
other. Thus  if  a  cari'iageniaker  should 
repair  my  carriage,  both  furnishing  labor 
an<l  supplying  materials,  it  would  be  a 
contract  for  work  and  labor,  as  the  whole] 
result  of  his  efforts  would  not  produce  a 
chattel  which  could  be  the  sniiject  of  sale 
by  him.  If  on  the  other  hand,  by  the  con- 
tract he  lays  out  work  or  materials,  or 
both,  so  as  to  produce  a  chattel  vrhich  he 
could  sell  to  me,  the  contr;ict  is  within  the 
statute.  This  conclusion  has  been  reached 
onl,y  after  great  discussion  and  much  fluc- 
tuation of  opinion,  hut  must  now  be  re- 
garded as  settled.     The  leading  case  upon 


this  point  is  Lee  v.tJriflin,  1  Best  &  Smith, 
27l!;  Benj.  Sales,  77.  The  action  was  thei'e 
brought  by  a  dentist  to  recover  £21  sterl- 
ing for  two  sets  of  artificial  teeth,  made 
for  a  deceased  lady  of  whose  estate  the 
defendant  was  executor.  The  court  held 
this  to  be  the  sale  of  a  chattel  within  the 
statute  of  frauds.  Blackburn,  J.,  stated 
the  principle  of  the  decision  in  a  clear 
ipaniier:  "  If  the  contract  be  such  that  it 
will  result  in  the  sale  (jf  a  chattel,  then  it 
constitutes  a  sale,  but  if  the  work  and 
labor  l)e  bestowed  in  such  a  manner  as 
]  that  the  result  would  not  be  any  thing 
I  which  could  propti'ly  be  said  to  be  the 
■  subject  of  sale,  the  action  is  for  work  and 
;  labor." 

The  Massachusetts  rule,  as  applicable  to 
goods  lufinufactured  or  modified  after  the 
I  bargain  for  them  is  made,  mainly  regard.s 
[  the  point  whether  the  products  can,  at  the 
!  time  stipulateii  for  delivery,  be  regarded 
as  "goods,  wares  and  merchandise,"  in 
the  sense  of  being  generally  marketable 
commodities  made  by  the  manufacturer. 
In  that  respect  it  agrees  with  the  English 
rule.  The  test  is  not  the  non-existence  of 
the  commodity  at  the  time  of  the  bar- 
gain. It  is  ratlier  whether  the  manufac- 
turer produces  the  article  in  the  general 
course  of  his  business  or  as  the  result  of 
a  special  order.  Goddard  v.  Biiiney,  II.t 
Mass.  4.")(),  1.")  .\m.  Kep.  112.  In  this  very 
recent  case,  the  result  of  their  decisions  is 
stated  in  the  following  terms:  "A  eon- 
tract  for  the  sale  of  articles  then  existing, 
or  such  as  the  vendor  in  the  ordinary 
course  of  his  business  manufactures  or 
procures  for  the  general  market,  whether 
on  hand  at  the  time  or  not,  is  a  contract 
for  the  sale  of  goods  to  which  the  statute 
applies.  But  on  the  other  hand,  if  the 
goods  are  to  be  manufactured  especially  for 
the  purchaser  and  upon  his  special  order, 
and  not  for  the  general  market,  the  case  is 
not  within  the  statute.  "  Under  this  rule 
it  was  held  in  (iardner  v.  Joy.  9  .Mete.  177, 
that  a  contract  to  buy  a  certain  number 
of  boxes  of  candles  at  a  fixed  price  per 
pound,  which  the  vendor  said  he  would 
manufacture  and  deliver  in  about  three 
months,  was  held  to  be  a  contract  of  sale. 
On  the  other  hand  in  Goddard  v.  Binney, 
supra,  the  contract  with  a  carriage  manu- 
facturer was  that  he  should  make  a 
buggy  for  the  person  ordering  it,  that  the 
color  of  the  lini:ig  should  lie  drab,  and  the 
outside  seat  of  cane,  and  have  on  it  the 
monogram  and  initials  of  the  partj'  for 
whom  it  was  made.  This  was  held  not 
to  be  a  contract  of  sale  within  the  statute. 
See  also  Mixer  v.  Howartli,  21  Pick.  20.i, 
H2  Am.  Dec.  256;  Lamb  v.  Crafts,  12  Mete. 
:i.j-!,  .Spencer  v.  Cone,  1  id.  2S3. 

The  New  Y'ork  rule  is  still  different.  It 
is  held  here  by  a  long  course  of  decisions 
that  an  agreeement  for  the  sale  of  any 
commodity  not  in  existence  at  the  time, 
but  which  the  vendor  is  to  manufacture 
or  put  in  a  condition  to  be  delivered,  such 
as  flour  from  wheat  not  yet  ground,  or 
nails  to  be  made  from  iron  belonging  to 
the  manufacturer. is  notacontract  of  sale. 
The  New  Y'ork  rule  lays  stress  on  the 
word  "sale."  There  must  be  a  sale  at 
the  time  the  contract  is  made.     The  latest 


COOKK  V.  MIIJ.AI!!).  ISO 

iiiifl  most  antlioritative  expression  of  the  '  diffipiilt  to  draw  tl.c  line,  luiil  to  tllKcover 
rule  i.-i  I'oiiml  in  a  recent  ciise  in  this  court,  wlictlier  the  cliatlelH  ure  in  cxiMt»'ncc  or 
Parsons  v.  hoiickH.  4s  N.  Y.  17,  l'.»,  h  Am.  not.  Thi-  miiihh  of  tlie  ciiHeH  will  iiowi-ver 
IJcp.  ■")I7.  IMie  ciintrnHt  between  I'arsons  readily  lje  cUiHsifieil.  If,  on  fiirther  diHciiH- 
V.  Lom-ks,  in  this  state,  on  the  one  hand,  sion,  the  rule  in  Lee  v.  (irillin  should  he 
and  I^ce  v.  (irillin,  supra,  in  EuKland.  on  found  most  desirulile  nria|iplicalile  to  lioth 
the  otlier,  is  I  ha  t  in  the  former  case  the  kindsof  transactions,  a  proper  case  will  be 
word  sale  refers  to  the  time  of  enieriuK  liresented  for  the  consideration  of  tlie  lej;;- 
into  the  contr'act,  while  in    the    latter,  ref- j  islature. 

erence  is  had  to  the  time  of  delivery,  as  |  The  view  that  this  case  Is  one  of  sale  Is 
eonteiuplu ted  liy  ihe  parties.  If  at  tha t  ;  suhtain''d  hy  Smith  v.  I'enti.il  It.  Co.,  4 
time  it  is  a  clialtel  it  is  enouirli,  aceordinu  Keyes,  iso,  and  l>y  Downs  v.  I'.oss,  'SA 
to  the  ICuKlish    rule.     Other  cases   in    this  |  Wend.  '.'70 

state  atfreein;;  with  l'ar>ons  v.  I.oucksi  In  tlie  lirst  of  these  cases  there  was  a 
are  CiooUshank  v.  Ilnrrell,  IS  Johns.  ,")S,  contract  for  the  sale  and  delivery  of  a 
".(Am.Uec.  Is7;  Sew'all  v.  Fitch,  S  Cow.  rjuantity  of  wood,  to  he  cut  from  trees 
21.");  Kohertson  v.  Vauirlin,  .t  Sandf.  1;  standing  on  the  plaintiff's  land.  The 
Parker  v  Schenck,  'JS  llarh.  3s.  These  court  held  that  it  could  not  he  treated  as 
cases  are  based  on  certain  (d.'i  decisions  in  n.i  a;;re"Miient  for  work  and  liih 
Kn^land,  siicli  as  Towers  v.  Osl 
Strariir*,    .')0<),  and    Clayton    v.  .\ 


such    existence   maybe   arKueil    fri  ni    the  sidered    that    the   case   of    Towers    v    <)s- 

fact  tliat  matter  is  iniiestructible. "     So  in  l)orne,  1  Strange,  ,i(Mi,  whore  an  agreement 

Sewall    V.    Fitch,    supra,    the   nails  which  for  tlie    manufacture   of  a   chariot  was 

were  the  subject  of  the  contract  were   not  contract  for  work  and  labor,  was  extre 

*!.»» _i,  ,.    ....»     I...*- I...     1...    ..^n.i»  ;*,  ;  fc.  .,..  t^  .,•..,    .,...1  ...,..»  »..  I. ,.,.:,.. I  .. 


then  wroufilit  out,  but  were    to    be    made    in  itsnature,  and  wasnot  to  becarried  any 
and  <lelivei'ed  at  a  future  day.  further.     ra«e '.'CO.     The  eases  of  (iarbutt 

Nothing  of  this  kind  is  found  in  the  pres- 1  v.  Watson.  T)  U.  \-  .\ld.  (il:i,  and  Smith  v. 
ent  case.  The  lumber,  with  the  possible  |  Surnian, '.»  li.  &  C.  .'jUI.  were  cited  with  ap- 
e.xception  of  the  claplioards,  was  all  in  !  proval.  In  Oarbult  v  Watson  a  sale  of 
existence;  wlien  tin;  contract  was  made.  '  tlour  by  a  miller  was  held  within  the  stnt- 
It  only  nceiled  to  be  pici)anMl  for  the  pur-  ute,  althou;;li  not  ground  when  the  bar- 
chaser — dressed  and  put  in  a  condilion  to  uain  was  ma<le. 
fill  his   order.     The   court    ac(  ordincly    is        In  Downs  v.  Hoss  there  was  a   contract 


uhIi- 
he 


nil  HIS  oroei .  i  iie  couri  tici  t»ruiii;iiy  i.s  iii  i/owiis  \.  i\ifn»  iiii-tt-  «  tin  ti  (.miiiu 
not  hampered  in  the  disposition  of  this  for  Ihesaleof  seven  hundred  and  titty  liuf 
cause  by  authority,  but  may  proceed  upon  <'ls  of  wlieat,  two  hundred  and  fifty  of  t 
principle.  (|uantity  beinc:  in  a  granary,  and    the  res- 

Were  tliis  snliject  now  open  to  full  dis-  idiie  untlireshed,  but  which  the  vendor 
cussion  upon  principle,  no  more  cohvimi-  a;ireed  to  >ret  ready  and  deliver.  The 
lent  and  easily  understood  ru'e  coulil  be  court  held  the  contract  to  be  within  the 
adopted  than  tliat  enunciated  in  Lee  v.  statute  ot  frauds,  notwithstanding  Unit 
•  irillin.  1 1  is  at  once  so  iiliilosophical  and  the  act  of  threshing  was  to  be  done  by 
so  readily  comprehensiliie,  that  it  is  a  i  the  vendor.  Tin-  rule  that  jroveriied  the 
matter  of  surprise  tliat  it  should  liaye  court  was  tliat  if  the  thiny;  sold  exist  at 
been  lirst  .■innouiued  at  so  late  a  stn^e  in  I  the  time  in  solido.  the  mere  fact  that 
thediKcussioiiof  tlie  statute.  It  is  too  late  |  somethin;?  remains  to  be  done  to  |>iit  it  In 
to  adopt  it  in  full  in  this  state.  So  far  as  a  marketalile  condition  will  not  take  the 
authoritative  dicisioiis  have  Kone,  they  contract  out  o(  the  opiration  of  the  stiit- 
inust  be  respected,  eyen  at  the  expense  of  ute.  I'ase  -7-.  This  proposition  is  In 
sound  principle.  The  court  however  in  marked  coal  cast  to  the  view  expressed  hy 
view  of  tlie  present  state  of  tlie  la  w,  (owen,  .1.  in  a  dissenlinu  opinion.  His 
should  plant  itself,  so  far  as  it  is  not  pre-  theory  was  that  where  the  at  tide  which 
eluded  from  doinsi  so  bv  aiitiioritv.  upon  forms  the  sul  jcct  of  sah'  is  understood 
some  dearlviiitelliirible  ground,  and  Intro-  by  the  parties  to  be  defective  in  any  par- 
due  no  more  nice  and  periilexiny:  distinc-  ticubir  which  dem.iuds  the  llnishbiK'  labor 
tioiis  1  think  that  tlie  true  rule  to  be  I  of  the  vendor  in  onler  to  satisfy  the  bar- 
upplied  ill  this  state,  is  that  when  the  i  snin.  it  is  a  contract  for  work  and  labor, 
chattel  is  in  existence,so  as  not  to  be  Kov-  and  not  of  sale.  The  two  theories  (  where 
erned  by  Parsons  v.  LoucUs.  supra,  the;  the  goods  existat  the  time  of  sale;  have 
contract  should  bo  deemed  to  lie  one  of  nowhere  been  more  tersely  and  ilistinctl.v 
sale,  even  though  it  may  have  been  or-  stated  than  in  the  eoiillicting  opinions -if 
dered  from  a  seller  who  i:,  to  do  some  Itroasoii  and  Co  wen.  .1.1 ..  in  this  case.  See 
work  upon  it  to  adapt  it  to  the  use.s  of  also  Courtright  v.  Stewart,  11)  llarh. -I,.... 
the  purchaser.  Such  a  rule  makes  iiut  a  The  fallacy  in  the  proposition  of  (  owen, 
single  distimtinn,  and  that  is  tietweenex-  .1.,  is  in  a.-*sumiiig  that  there  is  any  "  """rK 
isting  and  non-existing  chattels.  There  and  labor"  .loa-  for  the  vendee.  Al  tlie 
will  still  be  border  cases  wlieie   it  will    be    work  and    labor  is  done   on    the  vendor  b 


190 


COOKK  V.  MILLARD. 


property  to  put  it  in  a  condition  to  eniililo 
him  to  Hell  it.  His  compen.sjitioii  for  it  i^ 
found  in  tlie  [iriop  of  the  s'(>o(l.-(  sold.  It  is 
a  jujjKle  of  words  to  i-;ill  tills  "a  mixed 
coiitriiet  of  sale  and  work  and  laijor. " 
When  tliesooilj^  le.ive  the  vendor's  hands 
and  ijass  over  to  the  venilee  the.v  pass  as 
cliattels  under  an  exeeuted  contract  of 
sale.  While  an.v  thin};  remained  to  be 
done  the  contract  was  executory  Tliere 
is  al)nndaiue  of  authori'y  for  nuiintainiiifr 
that  a  contract  in  its  origin  executory 
may.  by  tlie  performance  of  acts  under  its 
terms,  l)y  one  of  the  parties,  become  in 
the  end  executed.  Kohde  v.  Thwaites, 
6  B.  I'i  ('.  3.SS;  Benj.  Sales,  chap.  5,  and 
cases  cited. 

Thecase  of  Donovan  v.  Willson,  2(i  Barb. 
13S,  and  Parker  v.  Schenck,  28  id.  3S,  are 
to  l)e  ui)held  as  falliutt  within  the  principle 
of  Parsons  v.  Loucks,  supra.  Both  of 
these  cases  concerned  aiticles  not  in  exist- 
ence, but  to  be  produced  bv  the  manufac- 
turer; in  the  one  ease  beer  was  to  be  man- 
ufactured, an<l  in  the  other  a  brass  pump. 
S(i  in  Passaic  Mannf.  Co.  v.  Hoffman,  3 
iJaly.  J!l."i,  the  contract  was  for  the  man- 
ufacture and  delivery  of  fifty  warps. 
Noi\e  of  these  were  in  existence  when  the 
order  was  received.  Wtiile  the  case  ap- 
pears to  fall  within  the  rule  of  Parsons  v. 
Loucks,  the  eminent  judfjre  who  wrote  an 
elaborate  opinion  expressiuji  tlie  views  of 
the  court  would  seem  t(j  rely  upon  the 
Massachusetts  rule  rather  than  our  own 
AVhatever  view  miRlit  be  entertained  of 
the  soundnessof  that  distinction  it  is  now 
too  late  to  adopt  it  here,  and  the  case 
cannot  be  sustained  on  that  Krouml 

The  only  case  in  our  rei)orts  appearing 
to  stand  in  the  way  of  the  conclusion  ar- 
rived at  in  this  cause  is  Mead  v.  Case,  33 
Barb.  202.  The  court  in  that  case  recog- 
nized the  distinction  herein  upheld.  The 
only  doubt  about  the  case  is  whether  the 
court  correctly  applied  the  rule  to  the 
facts.  These  were  that  several  pieces  of 
marble  put  together  in  the  form  of  a  mon- 
ument Were  standing  in  the  yard  of  a 
marble-cutter.  That  person  agreed  with 
a  Iniyer  to  polish,  letter  and  finish  the 
article  as  a  monument,  and  to  dispose  of 
it  for  an  entire  price — .1f20l).  The  court 
held  that  there  was  no  monument  in  ex- 
istence at  the  time  of  the  bargain.  There 
were  i)ieces  of  stone  in  the  similitude  of  a 
monument,  and  that  was  all. 

It  is  unnecessary  to  quarrel  with  this 
case.  If  unsound,  it  is  only  a  case  of  a 
misapplication  of  an  established  rule.  H 
sound,  it  is  a  so-called  "border  case," 
showing  the  refinements  which  are  likely 
to  arise  in  applying  to  various  transac- 
tions the  rule  adopted  in  Sewall  v  Fitch, 
and  kindred  cases.  It  is  pro[)er  however 
to  say  that  the  notion  that  such  an  ar- 
rangement of  marble  t>laced  in  a  cenieter.v 
over  a  grave  cannot  be  regarded  iis  a 
monument,  in  the  absence  of  an  inscrip- 
tir)n,  seeuis  highly  strained.  Then  there 
could  liot  be  a  memorial  chui-ch  without 
an  inscription.  Then  it  could  not  have 
been  said  of  Sir  Christopher  Wren,  in  his 
relation  to  one  of  his  great  architectural 
productions, "Si  qua;ris  monuiuentum,cir- 
curaspice."     It  would   seem    to  be  enough 


if  the  monument  reminds  the  passer-b.y  of 
him  whom  it  is  intended  tocomraemorate, 
and  this  might  be  by  tradition,  inscrip- 
tions on  adjoining  or  neighboring  objects, 
or  otherwise. 

In  the  view  of  these  principles,  the  de- 
fendants had  the  right  to  set  up  the  stat- 
ute of  frauds.  I  think  that  this  was  so 
even  as  to  the  clap  loards.  Although  not 
strictly  in  existence  as  claiiboards.  they 
i  fall  within  the  rule  in  Smith  v.  Central 
I!.  (Jo.  They  were  no  uiore  new  jtrod- 
ncts  than  was  the  wood  in  that  case. 
There  was  simply  to  be  gone  thi-ough 
with  a  process  of  dividing  and  adapting 
existing  materials  to  the  plaintiffs'  use. 
It  would  be  ditfictilt  to  distinguish  be- 
tween splitting  planks  into  clapboards, 
and  trees  into  wood.  \o  especial  skill  is 
required,  as  all  the  work  is  done  by  ma- 
chinery in  general  use,  and  readily  man- 
aged by  any  producers  of  ordinary  intelli- 
gence. The  case  bears  no  resemblance  to 
that  of  Parsons  v.  Loucks,  where  the  pro- 
duct was  to  he  created  from  materials  in 
no  respect  existing  in  the  form  of  paper. 
The  cases  would  have  been  more  analo- 
gous had  tlie  contract  in  that  case  been  to 
divide  large  sheets  of  paper  into  small 
ones,  or  to  make  packages  of  envelopes 
from  existing  paper.  In  Gllnian  v  Hill, 
3G  N  H.  311,  it  was  held  that  a  contract 
for  sheep  pelts  to  be  taken  from  sheep  was 
a  contract  for  things  in  existence,  and  a 
sale. 

The  next  inquiry  is,  whether  there  have 
been  sufficient  acts  doneon  the  part  of  the 
buyers  to  comply  with  the  statute.  In 
order  to  properly  solve  this  question,  it 
is  necessary  to  look  more  closely  into  the 
nature  of  the  contract.  As  has  been  al- 
ready suggested,  the  contract  w;!s  in  its 
origin  executory.  It  called  for  selection 
on  the  jjart  of  the  sellers  from  a  mass  of 
materials.  At  the  time  of  the  bargain 
there  was  no  sale.  There  was  at  most 
onl.v  an  agreement  to  sell.  The  plaintiffs 
however  lay  much  stress  on  the  f.ict  that 
after  the  oral  bargain  and  after  the  de- 
fendants had  inspected  the  lumber,  they 
gave  directions,  also  oral,  to  the  plaintiffs 
to  place  the  lumber  after  it  had  been 
made  ready  fordelivery  upon  the  dock  and 
togive  notice  to  Percival.  They  urge  that 
the  subsequent  compliani'e  with  these  di- 
rections by  the  plaintiffs  satisfy-  the  terms 
of  the  statute. 

It  will  be  observed  that  all  of  these  di- 
rections were  given  while  the  contract 
was  still  wholly  executory,  and  before 
any  act  of  selection  had  been  performed 
by  the  plaintiffs.  It  will  thus  be  necessary 
to  consider  whether  these  directions  are 
sufficient  to  turn  the  executory  contract 
of  sale  into  an  executed  one,  independent 
of  the  statute  of  frauds,  and  afterward  to 
inquire  whether  there  was  any  sufficient 
evidence  of  "acceptance  and  receipt"  of 
the  goods  to  take  the  case  out  of  the  stat- 
ute. These  questions  are  quite  distinct  in 
their  nature  and  governed  by  different 
considerations:  (1.)  If  the  contract  had 
been  for  goods  less  than  $'>0  in  value,  or 
for  more  than  that  amount,  and  ordered 
by  the  defendants  in  writing,  it  would  still 
have  been  executory   in  its  nature,  and 


COOKE  V.  MILLARD. 


191 


would  have  i)aRHe(l  no  specific  goods.  It 
would  liuve  been  an  agreement  to  sell  and 
not  a  sale.  The  case  would  not  have 
fallen  within  such  authorities  as  Oofoot 
V.  Bennett,  2  N.  Y.  L'.')S,  and  Kiniherlv  v. 
Patchin.  li)  id.  330,  T.j  Am.  Dec.  334.  Since 
the  goods  could  not  have  been  Identified 
at  all,  except  by  the  act  of  the  seller  in  se- 
lecting such  as  would  comply  with  the  or- 
der, nor  could  the  purpcjses  of  the  contract 
have  been  jjerforuied  exce|)t  by  the  labor 
of  the  plaintiffs  in  adapting  the  goods  to 
the  d'-feiidants'  use,  tlie  case  falls  within 
a  I'ule  laid  down  by  .Mr.  ISIackburn  in  his 
work  on  sales  (pp.  I.'jl,  1,'5'J) :  "  Wlioi'e,  by 
the  agreement,  the  vendor  is  to  do  any 
thing  to  the  gooils  f(jr  the  purpose  of  put- 
ting them  into  that  state  in  which  the 
purchaser  is  to  be  bound  to  accept  tlieiu, 
or  as  it  is  some  times  worded,  into  a  de- 
liverable state,  the  ])erformance  of  these 
things  shall,  in  the  absence  of  circumstan- 
ces indicating  a  contrary  intention,  be 
taken  to  be  a  condition  precedent  to  the 
vesting  of  the  oropertv."  Acraman  v. 
Morrice,  SC.  B.  44U;  (Jillett  v.  Hill,  2  (;.  * 
SI.  531);  Campbell  v.  .Mersey  Docks,  14  C.  B. 
(N.  S.)  412. 

Proceeding  on  the  view  that  this  was 
an  e.'cecutory  contract,  it  might  still  pass 
into  the  class  of  executed  sales  tiy  acts  "of 
subsequent  appropriation."  In  other 
words,  if  the  subseciuent  acts  of  the  seller, 
combined  with  evidence  of  intention  on 
the  part  of  the  buyer,  show  that  specific 
articles  have  been  set  apart  in  performance 
of  the  contract,  there  may  be  an  executed 
sale  and  the  property  in  Hie  goods  may 
pass  to  the  purchaser.  Blackburn  Sales, 
12s;  Benj.  .Sales, chap.  5;  Fragano  v.  Long, 
4  B.  &C.  21!);  Kohde  v.  Thwaite8,r)  id.  3^s; 
Aldridge  v.  Johnson,  7  E.  &  B.  SSo;  Cal- 
cutta,etc., Company  V.  Ue  Matfos,  33  L.  J. 
HI.  B.)  214.  in  Exch.  Cham.  This  doctrine 
requires  the  asseut  of  both  parties,  though 
it  is  held  that  it  is  not  necessary  that 
such  assent  should  be  given  by  the  buyer 
subsequently  to  the  appropriation  liy  the 
vendor.  It  is  enough  that  the  minds  of 
both  pjirtics  acted  upon  the  subject  and 
assented  to  the  selection.  The  vendor  may 
he  vested  with  an  implied  authority  by  tlie 
vendee  to  make  the  selection  and  thus  to 
vest  the  title  in  him.  Browne  v.  flare,  3 
H.  &  N.  4S4;  S.  C.,  4  id.  .^22.  This  doctrine 
would  be  applicable  to  existing  cha  ttels 
where  a  mere  selection  from  a  mass  of  the 
same  kind  was  re(]uisite  On  the  other 
hand,  if  the  goods  are  to  be  manufactured 
according  to  an  onler,  it  would  seem  that 
the  mind  of  the  purchaser  after  the  manu- 
facture was  complete,  should  act  upon 
the  quostion  whether  the  goods  had  com- 
plied with  the  contract.  See  Mucklow  v. 
Mangles,!  Taunt.  31S:  Bisho|)  v.  Craw- 
shay,  3  B.  &  C.  415;  Atkinson  v.  Bell,  8  id. 
277.  Tills  point  may  be  illustrated  by  the 
case  ()f  a  sale  by  sample,  where  the  seller 
agrees  to  select  from  a  mass  of  products 
certain  items  rorrespondlui'  with  the  sam- 
ple, and  forward  them  to  a  purchaser. 
The  net  of  selection  by  the  vendor  will  not 
pass  the  title,  fur  the  plain  and  satisfac- 
tory reason,  that  the  purchaser  has  still 
remaining  a  ri^lit  to  detern.ine  whether 
the  selected   goods  correspond    with    the 


'sample.  Jenner  v.  Smith,  L.  R.,  4  C.  P. 
270.  In  this  case  the  plaintiff  et  a  fair, 
orally  contracted  to  sell    to  the  defendant 

.  two  pockets  of   hops,  and    alscj  two  other 

]  pockets  to  correspcmd  with  a  sample, 
which  were  lying  In  a  warehouse  in  Lon- 
don, and  which  he  was  to  forward.  On 
his  return  to  London,  he  selected   two  out 

I  of  three  pockets  which  he   had    there,  and 

j  directed  them    to   be  marked  to  "  wait  the 

,  buyer's  order. ''      The   buyer  did    no  act  to 

I  show  his  acceptance  of  the  gooils.  The 
court    held    that   th''    appropriation    waR 

neither  originally  authorized  nor  subse- 
quently assented  to  l)y  the  buyer,  and 
that  the  property  did  not  pans  by"  the  con- 
tract. Brett.  .1.,  put  in  a  strong  form  the 
objection  to  the  view  that  the  buyer  could 
have  impliedly  assented  to  the  appropri- 
ation by  the  seller.  It  was  urged,  he  s.iid, 
"that   there  was  evidence   that  by  agree- 

'  meat  between  the  |)arties,  the  purchaser 
gave  authority  to  the  sellor  to  select  two 
pockets  for  him.  If  he  did  so,  he  gave  up 
ills  power  to  object  to  the  weighing  and 
to  the  goods  not  corresponding  with  the 
sample;  for  he  could  not  give  sucli  au- 
thority and  reserve  his  right  to  object, 
and  indeed  it  has  not  been  contended  that 
he  gave  up  thiise  rights.  That  seems  to 
me  to  be  conclusive  to  show  that  the  de- 
fendant never  gave  the  plaintiff  authority 
to  make  the  selection  so  as  to  bind  him. 
Under  the  circumstances  therefore  it  is  im- 
possible to  say  that  the  property  passed." 
Page  'Jix.    Toe  same  general  principle  was 

:  maintained  in  Kein  v.  Tupi>er.  ."«2  N.  Y. 
5.")0,  where  it  was  held  that  the  act   of  the 

1  vendor  putting  the  goods  in  a  state  to  be 
delivered  did  not  pass  the  title,  so  long  as 
the  acceptance  of  the  vendee,  provided  for 
under  the  terms  of  the  contract,  had   not 

:  been  ol)tnined. 

The  result  is,  that  if  this  sale,  executory 
as   it  was   in    its   nature,    had    not    fallen 

I  within  the  statute  of  frauds,  tlii're  would 
have  been  no  sulHcient  appropriation  liy 
the  vendor  to  pass  the  title.  The  trans- 
action,so  far  as  it  went,  was  even  at  com- 
mon law  an  agreement  to  sell  and  not  an 

j  actual  sale. 

(2.)  But  even  if  it  be  assumed    that   this 

'  would  have  l)een  an  executed  contract  of 
sale  in  its  own  nature,  without  reference 
to  the  statute  of  frauds,  was  there  "an 
acceptance  and  a  receipt"  of  the  goods,  or 
a  part  of  them,  t)y  the  buyer,  so  as  to 
satisfy  the  statute'* 

The  acceptance  and  receipt  are  both  nec- 
essary. The  contract  is  not  valiil  unless 
the  buyer  does  l)oth.  These  are  two  dis- 
tinct tilings.  There  may  be  an  actual  re- 
ceipt without  an  acceptance,  and  an  ac- 
ceptance without  a  receipt.  The  receipt 
of  the  goods  is  the  act  of  taking  posses 
sion  of  them.  When  theseller  gives  to  the 
buyerthe  actual  control  of  the  goods,  ami 

'  the  buyer  accepts  such  control,  he  has 
actually  received  them.     Such  a    receipt  Is 

I  often  an  evidence  of  an  acceptance,  but  it 
is  not  the  same  thing.  Indeed  the  receli>t 
by  the  liuyer  may  be.  and  often  is,  tor  the 
express  i)urpose  of  seeing  whether  lie  will 
accept  or  not.  Blackb.  Sales,  106;  see 
Brand  v.  Koch t,  3  Keyes,  40'J;  Stone  v. 
Browning,  51  N.  Y.  211. 


192 


COOKK   0.  MI]>LAUD. 


There  are  some  dicta,  of  various  judges, 
cited  by  tlie  pJMintiffs  to  the  effect  tliat  ac- 
ceptance and  receipt  are  eiinivalcDt.  Per 
('roiupton.  J.,  and  Cock!.Mirn,  Ch.  B.,  in 
fastle  V.  Sworder.  G  H.  &  N.  8.T.';  perErle, 
C.  .1.,  in  ilarrin  v.  Wallis,  (i  E.  &  B.  720. 
Tliese  remarks  cannot  be  regarded  as  of 
any  wei^jlit,  being  contrary  to  tlie  decided 
current  of  autliority.  Indeed  a  late  and 
approved  writer  says:  "It  may  l)e  con- 
fidently assumed  however  that  Ihe  con- 
struction which  attributes  distinct  mean- 
ing to  the  two  expressions,  '  acceptance' 
and  'actual  receipt,'  is  now  too  (irmly  set- 
tled to  1)6  treated  as  an  open  question, 
and  this  is  plainly  to  be  inferred  Irom  the 
opinious  delivered  in  Smith  v.  Hudson," 
6B.  &  S.  4315;  Benj.  Sales. 

It  cannot  be  conceded  that  there  was 
any  acceptance  in  tlie  present  case  by  rea- 
son of  tlie  acts  and  words  occurring  be- 
tween the  parties  after  tlie  parol  contract 
and  before  the  goods  were  prepared  for 
delivery.  There  could  be  no  acceptance 
without  the  assent  of  the  Olivers  to  the 
articles  in  their  changed  condition,  and  as 
adapted  to  their  use.  11  the  case  had  been 
one  of  specific  goods  to  be  selected  from 
a  mass  without  any  preparation  to  be 
made,  and  nothing  to  be  done  by  the  ven- 
dor but  merely  to  select,  the  matter  would 
have  presented  a  ver.v  different  aspect. 
This  distinction  is  well  pointed  out  liy 
Willes,  .1.,  in  Bog  Lead  Mill.  Co.  v.  Mon- 
tague, 10  C.  B.  (N.  S.)  4S1.  In  this  case  the 
question  turned  upon  the  meaning  of  the 
word  "acceptance,"  in  anotherstatute,  but 
the  court  iiroceeded  on  the  analogies  sup- 
posed to  be  derived  from  the  construc- 
tion of  the  same  word -in  the  statute  of 
frauds.  The  question  was  as  to  wliat 
was  necessH.'-y  to  constitute  au"acce])t- 
anee"  of  shares  in  a  mining  company,  un- 
der 1!)  and  'JO  Victoria,  chap.  47.  The 
court  having  likened  the  case  to  that  of  a 
sale  of  chattels,  said;  "It  may  be  that  in 
the  case  of  a  contract  for  the  purchase  of 
unascertained  property  to  answer  a  par- 
ticular description,  no  acceptance  can  be 
properly  said  to  take  iilace  before  the  pur- 
chaser has  had  an  opportunity  of  rejec- 
tion. In  such  a  case,  the  offer  to  purchase 
is  sjbject  not  only  to  the  assent  or  dis- 
sent of  the  seller,  but  also  to  the  condition 
that  the  property  to  be  delivered  by  him 
shall  answer  the  stipulated  description. 
A  right  of  inspection  to  ascertain  whether 
such  condition  has  been  complied  with  is 
in  the  contemplation  of  both  parties  to 
such  a  contract;  and  no  complete  and 
final  acceptance,  so  as  irrevocably  to  vest 
the  [iroperty  in  the  buyer,  can  take  place 
before  lie  has  exercised  or  waived  that 
right.  In  order  to  constitute  such  a  final 
and  coiniiletc  acceptance,  the  assent  of 
the  buyer  should  follow,  not  iirecede,  that 
of  the  seller.  But  where  the  contract  is 
for  a  specific,  ascertained  chattel,  the  rea- 
soning is  altogether  different.  Equally, 
wiiere  tlieoffer  to  sell  and  deliver  has  been 
first  made  by  tlie  seller  and  afterwards 
assented  to  by  the  buyer,  and  where  the 
offer  to  buy  and  accept  has  lieen  first 
made  b.v  the  buyer  and  afterward  assent- 
ed to  by  the  seller,  the  contract  is  com- 
plete by  the  assent  of   both  parties,  and  it 


is  acontract  the  expression  of  which  lesti- 
Hes  that  the  seller  has  agreed  to  sell  and 
deliver,  and  the  buyer  to  buj'  and  accept 
the  chai  tel.  "     Pages  4s9,  490. 

This  view  is  confirmed  by  Maberley  v. 
f^heppr.rd,  10  Bing.  U',).  That  was  an  ac- 
tion for  goods  sold  and  delivered,  and  it 
was  proven  that  the  defendant  ordered  a 
wagon  to  be  made  for  him  by  the  plain- 
tiff, and,  during  the  progress  of  the  woik, 
furnished  the  iron  work  and  sent  it  to  the 
plaintiff, and  sent  a  man  to  help  the  plain- 
tiff in  fitting  the  iron  to  the  wagon,  and 
bought  a  lilt  and  sent  it  to  the  plaintiff 
to  lie  put  on  the  wagon.  It  was  insisted, 
on  these  facts,  that  the  defendants  had 
exercised  such  a  dominion  over  the  goods 
sold  as  amounted  to  an  acceptance.  The 
court,  per  Tindal,  Ch.  .1.,  held  that  the 
plaintiff  had  been  rightly  nonsuited,  be- 
cause the  acts  (jf  the  defendant  had  not 
been  done  after  the  wagon  was  finshed 
and  capable  of  delivery,  but  merely  while 
it  was  in  progress,  bo  that  it  still  re- 
mained in  the  plaintiff's  .vard  for  further 
worK  until  it  was  finished.  The  court 
added:  "If  the  wagon  had  been  completed 
an<l  ready  for  delivery  and  the  defendant 
had  then  sent  a  workman  of  his  own  to 
perforin  any  additional  work  upon  it,  such 
conduct  on  the  part  of  the  defendant 
might  have  amounted  to  an  acceptance." 
See  also  Benj.  Sales,  chap.  4,  and  cases 
cited. 

The  iilaintiffs,  in  the  case  at  bar,  rely 
much  upon  the  decision  in  Morton  v.  Tib- 
bett,  l.'i  .\(l.  &  El.  (N.  S.)  4-.'S.  Tliey  main- 
tain tliat  this  case  clearly  establishes  that 
there  may  be  an  acceptance  and  receipt  of 
goods  by  a  purchaser,  within  the  statute 
of  frauds,  although  he  has  had  no  oppor- 
tunit.v  of  examining  them,  and  although 
he  has  done  nothing  to  preclude  hiniself 
from  objecting  that  they  do  not  corre- 
spond with  the  contract. 

The  expressions  in  Morton  v.  Tibbett 
are  not  to  be  pressed  any  further  than 
the  facts  of  the  case  require.  The  buyerof 
wh2at  by  sample  had  sent  a  carrier  to  a 
place  named  in  a  verbal  contract  between 
him  anu  the  seller  on  August  2.5.  The 
wheat  was  received  on  board  of  oneof  the 
carrier's  lighters  for  conveyance  by  canal 
to  Wisiieach,  where  it  arrived  on  the  2Sth. 
In  the  mean  time  it  had  been  resold  by  the 
buyer,  by  the  same  sample,  and  was  re- 
turned by  the  second  jiurchaser  because 
found  to  be  cf  short  weight.  T'he  defend- 
ant then  wrote  to  the  iilaintiff  on  thcyotli, 
also  rejecting  it  for  short  weight.  An  ac- 
tion vvas  broiigijt  for  goods  bargained 
and  sold.  I'here  was  a  verdict  for  plain- 
tiff, witli  leave  to  move  for  a  non.-iuit. 
The  question  for  the  appellate  court  was, 
whether  there  vvas  any  evidence  that  the 
defendant  had  accepted  and  received  the 
goods  so  as  to  render  him  lialile  as  buyer. 
The  court  held  that  the  acceptance  under 
the  statute  was  not  an  act  subsequent  to 
the  receipt  of  the  goods,  but  must  precede, 
or  at  least  be  contemporaneous  with  it ; 
and  that  there  might  be  an  acceptance  to 
.satisfy  the  statute,  though  the  purciiaser 
might  on  other  grounds  disaffirm  the  con- 
tract. 

Morton  v. Tibbett  decides  no  more  than 


COOKE  c.  MILLARD. 


193 


this,  viz.,  that  there  may  be  n  foiiilitiunal 
acceptance.  It  is  ;is  if  the  piiicliu.ser  had 
Haiii:  "  1  take  tliesu  Koo'ln  on  llie  Hiippo- 
Hilioii  that  tlie.vcoiniily  with  llio  con  tract. 
I  am  not  hound  to  decide  tliat  |)oint  at 
lliis  moment.  If,  on  examination,  tliey 
do  not  correspond  witli  the  naniple,  I  Hhali 
Mtill  return  tlieni  under  my  common-law 
ritilit,  «rowinf?  out  of  the  very  nature  of 
tl)e  contract,  to  declare  it  void,  liecause 
our  minds  never  met  on  its  Hul)jcct  matter 
—  non  in  haec  foedera  veni."  It  is  not  nec- 
essary to  decide  whether  this  distinction 
is  Honnd.  It  is  enuuKli  to  say  tliat  it  is 
intelliKiljIe.  The  case,  in  no  respect,  de- 
cides that  there  can  be  an  acceptance  un- 
der the  statute  of  frauds  witlHJut  a  clear 
and  distinct  intent,  or  that  unfinished  arti- 
cles can  be  presumed  to  be  accepted  before 
they  are  finished.  The  act  of  acceptance 
was  clear  and  unequivocal.  There  was  a 
distinct  case  of  intermcddlin;;  with  the 
j?oo(lH  in  the  e.xercise  of  an  act  of  owner- 
Bhip  -a  fact  entirely  wnntinfj;  in  the  case 
at  bar.  The  proof  of  acceptance  was  the 
act  of  resale  l)efore  examination.  Tlie 
point  of  the  decision  is,  that  this  was  such 
un  exercise  of  dominion  over  the  ^oods  as 
is  inconsistent  with  a  continuance  of  the 
rij^hts  of  property  in  the  vendor,  and  there- 
fore evidence  to  justify  a  jury  in  lindin^ 
acceptance  as  well  as  actual  receipt  l)y  the 
buyer.     Hunt  v.  Ilecht,  S  Exch.  ,S14. 

Even  when  interpreted  in  this  way,  Mor- 
ton V.  Tibbett  cannot  be  regarded  as  ab- 
solutely settled  law  in  England.  See 
Coombs  V.  Bristol  &  Exetar  Hy.  Co.,  3  H. 
&  N.  .510;  Castle  v.  Sw order,  ti  id.  82S. 
The  court  of  queen's  beach  recognizes  It, 
while  the  court  of  exche(iuer  has  not  re- 
ceived it  with  favor.  I^ater  cases  distinct- 
ly hold  that  the  acceptance  must  take 
place  after  an  opportunity  by  the  vendee 
to  exercise  an  option,  or  after  the  <loing 
of  some  act  waiving  it.  Bra m well,  1$., 
said  in  Coombs  v.  Bri.stol  &  Exeter  Ki'. 
Co.:  "The  cases  est.'iblisli  that  there  can 
be  no  acceptance  wl.ere  there  can  be  no 
opportunity  for  rejecting."  All  the  ca.ses 
were  reviewed  in  Smith  v.  Hudson,  G  Best 
&  Smith,  4:J1,  A.  D.  Iscr),  wh.'re  Hunt  v. 
Ueclit  was  approved.  The  two  last  cited 
cases  disclose  a  principle  applicable  to  the 
case  at  l)ar. 

In  Hunt  V.  Hccht  the  defendant  went  to 
the  pl.-untiff's  warehouse  and  there  in- 
spected a  heap  of  ox  bones,  mixed  with 
others  inferior  in  quality.  The  defeiwlant 
verbally  agieed  to  purchase  those  of  the 
better  (juality,  which  were  to  be  separat- 
ed from  the  rest,  and  ordered  them  to  be 
sent  to  his  wharlinger.  The  bags  were 
received  oh  the  !Uh.  and  examined  next 
day  by  the  defendant,  anil  he  at  once  re- 
fused to  accept  them.  There  was  liehl  to 
be  no  acceptance.  Thec.-ise  was  put  u|)on 
the  ground  that  no  acceptance  was  possi- 
ble till  after  separation,  and  there  was  no 
pretense  of  an  acceptance  after  that  time. 
Martin,  B.,  said  tliat  an  acceptance,  to 
satisfy  the  statute,  must  be  Hoiiiething 
more  than  a  mere  receipt.  It  means  some 
act  done  after  the  vendee  has  exercised  oi' 
had  the  means  of  exercising  his  right  of 
rejection. 

In  Smith  v.  Hudson,  supra,  barley  was 

LAW  SALES— n 


sold  on  November  3,  1803,  bv  sample,  by 
an  oral  contract.  On  the  7th  it  was  taken 
by  the  seller  to  a  railway  station,  where 
he  had  delivered  grain  to  tl:e  purchaHer 
on  several  prior  dealings,  and  where  it 
was  his  custom  to  receive  it  from  other 
sellers.  The  barley  was  left  nt  the  freight- 
house  of  the  railway,  consigned  to  the  or- 
der of  the  purchaser.  It  was  the  custom 
of  the  trade  for  the  buyer  to  compare  the 
sample  with  the  bulk  as  delivered,  and  U 
the  examination  was  not  satisfactory,  to 
reject  it.  This  right  continued  in  the  pres- 
ent case,  notwithstanding  the  delivery  of 
the  grain  to  the  railway  company.  Ou 
the  'Jtli  the  purchaser  became  bankrupt, 
and  on  the  11th  the  seller  notified  the  sta- 
tion-master not  to  deliver  the  barlev  to 
the  purchaser  or  his  assignees.  The  court 
held  that  there  was  no  acceptance  sutli- 
cient  to  stitisfy  the  statute.  The  most 
that  could  besiiid  was.  that  the  delivery 
to  the  company,  considered  as  an  agent 
of  tlie  buyer,  was  a  recei|it.  It  could  not 
be  claimed  that  it  was  an  acceptance,  the 
carrier  having  no  implied  autliority  to 
accept.  The  buyer  had  a  right  to  see 
whether  the  bulk  was  according  to  tlieHam- 
ple,  and  until  he  had  exercised  that  right 
there  WHS  no  acceptance.  Opinion  of  Cock- 
burn,  Ch.  .I*J4li:  see  also  Caulkins  v.  hell- 
man,  47  N.  Y.  4411,  7  Am.  l{ep.  4G1 ;  Halt- 
erline  v.  Kice,  (>2  Barb.  .V.K!,  Edwards  r. 
(Jrand  Trunk  Ky.  Co.,  4S  Me.  379;  S.  C,  54 
id.  111. 

The  case  at  bar  only  differs  from  these 
cases  in  the  immaterial  fact  that  the  de- 
fendants, after  the  verbal  contract  was 
made,  gave  verbal  directions  as  to  the 
disposition  which  should  be  made  of  the 
goods  after  they  were  put  into  a  condition 
ready  for  delivery.  All  that  subsei|uenlly 
imssed  between  them  was  mere  words, 
and  had  not  the  sliglitest  tendency  t«» 
show  a  waiver  of  the  right  to  examine  the 
goods  to  see  if  they  corresponded  with  the 
contract.  Whatever  effect  these  words 
might  have  had  in  indicating  an  accept- 
ance, if  the  goods  hud  been  specific  and  as- 
certained at  the  time  of  the  ilirectious  (see 
Cusack  v.  Uobinson,  1  Best  &  Smith,  IVJ), 
they  were  witliout  signilicance  under  the 
circumstances, as  the  meeting  of  the  minds 
of  the  parties  upon  thesubject  to  be  settled 
was  necessary.  Sheiiherd  v.  l'ressey,3;.' N. 
H.  5(.  In  this  case  the  effect  of  subse- 
(lucnt  engagements  by  the  buyer  was 
passed  upon  as  to  their  tendency  to  show 
a  receipt  of  the  goods  by  him.  The  court 
said;  "  .Asmere  words  constituting  a  part 
of  the  original  contract  do  not  constitute 
an  acceptance,  so  we  are  of  opinion  that 
mere  words  after  words  used,  looking  to 
the  future,  to  acts  afterward  done  by  the 
bu.ver  toward  carrying  out  the  contract, 
do  not  constitute  an  acceptance  or  prove 
the  actual  receii)t  required  by  the  stat- 
ute." The  case  was  stronger  than  that 
uniier  discussion,  as  the  goods  were  spe- 
cific and  fully  set  apart  for  tlte  purchaser 
at  the  time  iif  the  subsequent  conversa- 
tions. No  distinction  is  [lerceived  bet  ween 
f'ture  acts  to  be  done  by  the  liuyer  aud 
by  the  seller,  as  lioth  equally  derive  their 
force  from  the  buyer's  assent. 

I  see  uo  rea.son  in  the  case  at  bar  to  hold 


194 


COOKE  V.  MILLARD. 


that  the  Jefeiiilants  received  the  goods, 
indepenik'iit  of  tlie  matter  of  ncceptant'e. 
There  was  no  evidence  that  Peroival  be- 
came tlieir  ajie'it  for  this  purpose.  The 
most  that  can  be  KHid  is  tliat'tlicy  prom- 
ised tlie  plaintiffs  that  they  would  make 
Percival  their  af^eiit.  Tliis  promise  being: 
-oral  and  connected  with  the  sale,  is  not 
binding'.  They  did  not  in  fact  communi- 
oate  with  him  nor  did  he  assvime  any  do- 
minion or  control  over  the  property.  The 
proir.issor.v  reprcseiitations  of  tlie  plain- 


tiffs are  clearly  within  the  rule  in  Shep- 
herd v.  Pressey,  supra. 

The  whole  case  falls  within  the  doctrine 
in  Shindlerv.  Houston,!  N.  Y.  "JGl  ;  40  Am. 
Dec.  :!](j,  there  beins  no  suHicieiit  act  of 
the  pn''tie8  amountinR  to  tran.-*fer  of  the 
possession  of  the  lumber  to  the  buyer  and 
acceptance  by  him. 

The  jndifment  of  the  court  below  should 
bo  attirnied. 

All  cr  ncur. 

JudHineut  affirmed. 


COON  V.  SPAULDING. 


197 


COON  T.  SPAULDING  et  al. 

(10  X.  W.  Rep.  1S3,  4T  Mich.  1C2.) 

Supn-iue  Court  of  Michigan.    Oct.  26,  1S81. 

Krror  to  Wayne. 

F.  A.  Baker,  for  jiluintiff  in  prror.  S.  R. 
Harris  and  Henry  M.  Cheever,  for  defend- 
untH  in  error  j 

MAHSTON,  C.  .J.     As  stated  in  the   brief 
of  counsel  for   plaintiff   in   error,  the  main 
question  in  this  case  is,  whether  the  plain- 
tiffs  lielow,  defendants    in   error,  went  to 
(;oon's   to   i)ress    the   hay   contracted   for 
witliiii   n   reasonable   time   after   the  con- 
tract   was   made.      The   following   is   the 
written   contract  sued   upim.   "Dearborn,' 
Mich.,  Septenil)er  '-'.j,  IS7!).     Received   from 
Spanlding   &  liofjers   $50  to  apply  on  the 
pnrchase   of   hay,   estimated    at   100   tons  ] 
more  or  less,  to   be   delivered    at   Fisher's  ; 
station,  at   $10   jter   ton,  ineludinK   board) 
for   men    and    teams,  fuel  for    engine   and 
nien  to  i)itcli  the    hay  to   the  press.      Hay  | 
to  be  paid  for  as  delivered,  and    to    be   de- 1 
liverei    in    a    reasonable  time   after   being ! 
pressed.     .f."iO.     .Joseph  Coon."     November 
I'J,  IsT'.),  .Spauldinn  &  Rogers  were   at    Mr.  j 
Coon's   place   ready  to   press  the  hay,  but 
Mr.  Coon  declined  to  let  them  have  it. 

It  will  be  noticed  that  the  contract  is 
silent  as  to  who  sliall  i)ress  the  hay  and 
also  as  to  when  it  shall  be  iiressed,  and 
assuming  that  Spanlding  &  Rogers  were 
to  press  the  hay  whether  they  were  ready 
and  offered  to  do  it  within  a  reasonable 
time  will  dei)end  niion  the  admissil)ility 
and  weight  to  be  given  certain  oral  testi- 
mony offered  by  them. 

The  plaintiffs  below  offered  evidence, 
viz.,  the  testimonj-  of  Rogers  one  of  the 
plaintiffs,  tending  to  show,  that  they  were 
ready  to  commence  jiressing  the  hay  at 
the  time  tlie  contract  was  entered  into, 
but  tliat  Mr.  Coon  was  not  ready  and  re- 
•  piested  them  to  wait  for  three  weeks  until 
he  could  get  certain  fall  work  done.  The 
plaintiffs  also  introduced  a  letterpress 
copy  of  a  letter  mailed  November  10th  to 
the  defendant  properly  aildressed  postage 
prei)oid,  with  tlieir  card  In  the  envelope, 
and  a  rec|uest  to  return  in  five  days  if  not 
called  for,  but  which  was  not  returned, 
which  letter  was  as  follows:  "Wayne, 
Mich.,  November  10.  1S7!).  .loseph  Coon, 
ICsq.,  Dearborn,  Mich.  — Dear  Sir  ■  Wehave 
been  waiting  to  hear  from  you  about 
hay,  and  let  us  know  when  it  will  be  con- 
venient to  press  your  hay.  We  are  now 
pressing  and  loading  at  Plymouth,  and 
expect  to  finish  the  present  job  this  week, 
and  shall  then  be  prepared  to  come  to 
your  place  next,  reaching  there  some  time 
next  week.  Moping  tliis  will  prove  satis- 
factory we  remain  yours  truly.  SpauUling 
&  Rogers."  To  this  they  received  no  re- 
ply. There  was  no  further  or  other  com- 
munication between  them,  until  they  went 
to  press  the  hay  November  2L'il  as  already 
stated.  And  first  was  this  evidence  ad- 
missible'? Counsel  for  plaintiff  in  error 
Insists  it  was  not  for  two  reasons:  viz.: 
that  the  conversation  about  wailingthree 


weeks  until  Mr.  Coon  should  get  his  fall 
work  done,  took  place  at  Ihe  time  tlie 
contract  was  enlercd  into,  having  lieen 
talked  over  immediately  before  and  after 
the  contract  was  signeil.  and  that  It  was 
therefore  merged  in  the  written  agree- 
ment. And  the  contract  being  one  which 
the  statute  of  frauds  re()uired  to  be  In 
writing,  could  not  be  modified  by  a  subse- 
quent pared  agreement.  The"  position 
taken  l)y  counsel  for  plaintiff  in  error  us 
to  the  time  the  conversation  took  idace  i» 
undoubtedly  correct.  On  crosH-examina- 
tion  Mr.  Rogers  testified  that  "before  the 
conti'act  was  signed  he  and  .Mr.  (  oon  had 
talked  about  the  timethe  plaintiffs  should 
come  to  |)ress  the  hay,  that  Mr.  Coon  said 
he  should  be  busy  for  three  weeks,  and 
they  coidil  have  the  hay  any  time  after 
that,  which  the  witness  unih'rstooil  meant 
a  reasonable  time  after  three  weeks;  that 
no  time  was  fixed  within  which  the  plaintiff 
should  come,  tiuestion.  That  is  then- was 
no  time  agreed  upon'/  .Vnswer.  No.  sir; 
but  the  last  thing  I  said  to  him  was  'if 
you  get  ready  before  we  do  let  us  know.'" 
This  witness  further  testified  that  he  did 
not  see  .Mr.  Coon  from  tlie  day  the  con- 
tract was  signed  until  the  day  he  moved 
the  machine  there  and  demanded  the  hay, 
November  22d  ;  and  that  all  he  ilid  in  the 
mean  time  was  to  write  the  letter  of  No- 
vember lOtli  above  given. 

The  case  therefore  seems  to  come  clearly 
within  the  decision  in  Strange  v.  Wilson, 
17  Mich.  342,  and  the  reasoning  in  that 
case  njjplies  witli  full  force  here.  The  sub- 
stance of  all  the  testimony  is  set  forth  in 
the  bill  of  exceptions,  and  we  are  unal)le 
to  find  any  testimony  fairly  tending  to 
show  that  there  was  any  sultsequent  oral 
modification  of  the  contract  even  admit- 
ting such  to  have  been  admissible.  It  was 
therefore  4.")  days  after  the  contract  was 
made  before  the  letter  of  Noveml)er  10th 
was  written  s])ecifving  that  the  following 
week  the  jtlaintiffs  would  be  ready  to 
proceed  with  the  work  on  their  part. 
The  oral  evidence  being  admissilile  the  de- 
lay was  greater  than  in  the  ordinary 
course  of  business  could  fairly  have  been 
required,  or  nn<lerstood  by  the  parties  to 
enable  the  plaintiffs  to  enter  upon  the 
work.  It  exceeded  any  possible  time  re- 
quired by  reason  or  necessity,  and  consid- 
ering the  time  of  year,  and  that  the  de- 
fendant had  to  draw  and  deliver  the  hay 
at  a  place  named  after  it  was  pressed.  It 
is  not  to  be  presutned  that  so  longa  delay 
was  contemplated.  Phamix  Ins.  Co.  v. 
Allen,  11  Mich.  olO:  Druse  v.  Wheeler,  2ti 
Mich.  li).'>.  22  Mich.  441. 

The  juelgment  must  be  reversed  with 
costs  and  a  new  trial  ordered. 

GRAAES  and  COOLEY,  JJ.,  concurred. 

CAMPBELL,  J.  I  agree  in  the  conclu- 
sion that  there  shoulil  he  a  new  trial,  and 
I  also  agree  in  the  construction  of  the  con- 
tract when  taken  by  ltself,thnt  Is  explain- 
ed by  the  chief  justice.  But  I  think  there 
was  evidence  of  subsequent  dealings  suHl- 
cient  to  make  the  question  of  reasonable 
time  proper  to  go  to  the  jury. 


COPLAY  IROX  CO.  v.  POPE. 


199 


COPLAY  IRON  CO.,  Limited,  v.  POPE  et  al. 

(15  N.  E.  Rep.  33o,  108  N.  Y.  2.32.) 
Court  of  Appeals  of  New  York.    Jan.  17,  18SS. 

Appeul  from  general  term,  court  of  com- 
inon  pleas,  city  aiuJ  county  of  New  York, 
entered  upon  an  order  made  A|)ril  20,  ISNj, 
wliici)  attirined  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict. 

Tlieotherfacts  fully  appearin  thefoUow- 
ins  Btatcmeut  by  KAKL,  .7.: 

TliiH  action  was  brouulit  to  recover  the 
price  of  .'jOO  tons  of  pin-iron  huIU  and  deliv- 
ered by  the  plaintiff  to  tlie  defendants.  In 
their  answer,  by  way  of  counter-claim, 
the  defendants  aile|j;e  that  they  aie  deal- 
ers in  iron,  and  are  not  enjraKed  as  nian- 
iifacliirers  or  consumers  thereof;  that  on 
or  about  the  ei;;lith  day  of  December, 
1S7!),  the  plaintiff  sold  aiid  aprreed  to  de- 
liver to  them  '.t(Ml  tons  of  No.  1  extra 
foniKlry  pi^-iron  of  the  Coplay  Iron  Com- 
pany, I^imited,  make,  at  the  price  of  $27 
per  ton  ,  that  it  aureed  to  deliver  and  sliip 
the  iron  on  board  the  cars  at  its  furnace 
as  and  when  ordered  by  tin,'  defendants; 
that  they  itnid  it  the  full  price  of  the  iron  ; 
that  No.  1  e.xtra  was  a  ^rade  of  pig-iron 
of  certain  well-known  quality  in  the  mar- 
ket; that  they  purchased  the  iron  to  sell 
again  to  their  customers,  which  was  well 
known  to  the  plaintiff;  that,  relying  up- 
on plaintiff's  promiseand  agreement,  they 
sold  to  E.  P.  Allis  &.  Co.,  one  of  their  cus- 
tomers in  Milwaukee,  "idll  ton.s  of  the  iron 
at  and  for  the  agreed  price  of  $->i  per  ton, 
to  be  delivered  lit  the  furnace  of  the  Cop- 
lay  Iron  Comjjany,  Limited, and  forwhich 
E.  P.  Allis  &  Co.  fully  paid  them;  that 
they  ordered  the  plaintiff  to  ship  the  iron, 
and  thereupon  it  made  a  shipment  of  iron 
uptm  the  contiact  which  it  claiiDcd  and 
pretended  was  No.  1  e.xtra  iron,  which  in 
fact  was  not  No.  1  extra  iron,  but  a  graile 
of  iron  of  inferior  ([uality,  and  of  less 
value,  than  No.  1  extra  iron,  or  the  quality 
it  agreed  to  deliver,  and  it  delivered  to 
them  therefor  a  liill  of  lading,  in  which 
the  same  was  described  as  No.  1  extra 
iron;  that  they  sold  the  iron  to  their  cus- 
tomers as  No.  1  extra  iron;  that  they  did 
not  examine  the  iron,  and  had  no  oppor- 
tunity to  examine  the  same;  that  they 
relied  upon  the  promise  and  agreement 
and  bills  of  lading,  and  .')(I0  tnns  of  the  iron 
wer«  forwarded  to  their  customer.s  with- 
out examining  the  same;  that  on  or 
about  the  thirty-tirst  day  of  July,  ISNO.  as 
soon  as  the  iron  arrived  at  Milwaukee, 
and  they  had  inspected  the  same,  E.  P. 
Allis  &  Co.  notified  these  defen<lnnt8  that 
the  .")U0  tons  of  iron  sold  and  delivered  by 
these  defendants  to  them  was  not  No.  1 
extra  iron,  but  was  of  a  iinnliiy  or  grade 
greatly  inferior  thereto,  and  entirely  unlit 
for  use  as  N<).  1  extra  iron,  and  they  re- 
fused to  accept  the  iron,  and  demanded 
of  these  defendants  the  return  of  the  pur- 
chase price  paid  by  them  therefor,  with  in- 
terest, and  the  cost  of  transi)orting  the 
same  from  the  furnace  of  the  Coplay  Iron 
Company,  Limited,  to  Milwaidiee,  and 
storage  expenses;  that  these  defendants 
forthwith  duly  notified  the  iilaintiff  of  the 
inferior  ((utility  of  the  iron,  and  the  claim 
made  by  these  defendants'  customers,  and 


requested  plaintiff  to  examine  the  Iron, 
and  notined  it  that  they  would  hold  it 
responsible  f<ir  all  damages  they  might 
sustain  by  riason  of  its  failure  to  deliver 
the  iron  rei|uired  by  the  contract;  that 
the  iron  so  delivered,  or  agreed  to  be  de- 
livered, by  the  plaintiff  to  defendants, 
was  not  No.  1  extra  ir<jn,  but  iron  of  « 
quality  greatly  inferior  thereto,  and  not 
of  the  standard  or  quality  of  No.  1  extra 
iron,  and  wholly  urisuitfible  for  use  In  de- 
fendants' customers'  business;  that  It 
was  not  No.  1  extra  Coplay  iron;  that  de- 
tentlants'  customers  refused  to  accept, anil 
have  not  accejited,  the  iron,  and  it  re- 
mains siil)ject  to  the  plaintiff's  order,  and 
these  defendants  have  not  accepteil  tho 
same;  that  defendants  have  sustained 
damages  by  reason  of  the  inlerior  quality 
of  the  iron,  ami  the  breach  of  the  plain- 
tiff's agreement  as  to  the  qiinlity  thereof, 
and  its  refusal  to  deliver  the  iron  i.-ur- 
cliased  of  it,  and  of  its  refusal  to  return 
the  money  so  received,  defendants  demand- 
ed that  the  complaint  he  dismissed,  and 
tluit  they  have  juilgment  for  the  amoont 
of  tlirii-  damages. 

Thecasewa.s  brought  to  trial,  anrl  a  jury- 
was  impanele<l  to  try  the  same,  ('ounsel 
for  the  plairitiff  then  moveil  the  court  for 
judiiment  upon  the  gr<»unds—"  First,  that 
there  is  ncj  defense  set  up  to  the  cause  of 
action  set  forth  in  the  c<>mplaint ;  second, 
that  the  facts  set  up  by  way  of  counter- 
claim are  not  only  iiot  sufhcicnt  to  cmisti- 
tute  a  cause  of  action,  but  show  athrma- 
tively  that  there  is  no  liability  whatever 
on  the  part  of  this  plaintiff  to  the  defend- 
ants." The  defendants  conceded  that  the 
plaintiff's  claim  set  forth  in  its  complaint 
was  admitt(Ml  by  the  answer,  anil  they 
then  offered  to  |>ri)ve  the  counter-claim 
set  op  in  the  answer.  Plaintiff's  counsel 
admitted,  fur  the  jiurposcs  of  his  motion, 
that  all  the  allegations  in  the  answer  were 
proved.  The  court  thereupon  directed  a 
verdict  for  the  plaintiff,  to  which  direction 
defendants'  counsel  excepted. 

\Vm.  W.  Niles,  for  appellants.  Chas.  B. 
Alexander  and  George  A.  Strong,  for  re- 
spondent. 

EARL,  J.,  (after  stating  the  facts.)  We 
must  assume  that  the  sale  of  iron  allegeci 
in  the  Cefendants'  coniiter-claim  was  an 
executory  sale,  as  that  is  the  fair  and  just 
inference  from  the  facts  alleged.  The 
plaiutii'f  was  a  manufacturer  of  iron,  and 
the  contract  of  sale  was  made  on  the 
eighth  day  of  December,  isT'.i.  It  covered 
9110  tons  of  iron,  and  it  was  to  be  delivered 
in  the  future,  as  and  when  the  defemlants 
ordered  it  to  make  delivery.  There  is  no 
allegation  that  the  plaintiff,  at  the  time  of 
this  sale,  had  the  iilentical  !HI(I  tons  of  iron 
on  hand,  or  that  that  quantity  was  sepa- 
rated from  other  iron.  It  woidd  bo 
against  all  e.\|)erience,  and  certainly 
against  the  usual  course  of  business,  to 
sui)|)Ose  that  the  maiiufjieturer  had  the 
iron  on  hand,  and  that  upon  its  purchase 
by  the  liefeinlants  it  was  separated  and 
set  apart  and  stored  (or  them.  It  is  rea- 
sonable to  suppnse-and  as  all  the  facts 
wen' submitted  ti>  thecourt.  neither  party 
asking   to    have   them    submitted    to   thi> 


200 


COPLAY  IRON  CO.  v.  POPE. 


jury,  the  court  Iind  tlie  right  to  flraw  the 
inference — Ihat  the  inui  was  to  be  there- 
after maiuifiictiirec!,  weiffhed,  designated, 
and  delivered,  and  thus  this  wa.s  an  exec- 
utory contract  of  sale.  In  sueli  a  case, 
tliefact  of  payment  has  very  little  signifi- 
cancv.  It  is  sometimes  a  controlling  fact 
to  sliow  that  the  sale  was  not  executory, 
and  was  completely  executed.  It  is  al- 
ways evidence  upon  that  (jnestion,  hnt  in 
a  case  like  tliis  is  not  iinpoitant.  The 
price  of  property  purcliased  may  lie  paid, 
and  yet  the  contract  of  sale  in  every  sense 
be  executory 

Treating  this,  then,  as  an  executory  con- 
tract of  sale,  the  defemlants  are  not  In  a 
po.sition  to  con!|''ain  of  the  quality  of  the 
iron,  because  they  never  offered  to  return 
it,  and  never  gave  tlie  plaintiff  notice  or 
opportunity  to  take  it  back.     They  must 


therefore  becondusively  presumed  to  have 
acquiesced  in  the  quality  of  the  iron. 
Hargons  v.  Stone,  5  N.  V.  73;  Heed  v. 
Randall.  29  N.  Y.  3.')S;  McCorniick  v.  Sar- 
son,4r)  N.  Y.  2C5;  Dutchess  Co.  v.  Harding, 
49  N.  Y.  323;  Manufacturing  Co.  v.  Allen, 
53  N.  Y.  .515.  Here  there  was  n(»  collateral 
warranty  or  agreenient  as  to  the  quality 
of  the  iron.  The  representation  as  to  the 
kind  and  quality  of  iron  was  part  of  the 
con  tract  of  sale  itself,  descriptive  simply 
of  till'  article  to  be  delivered  in  the  future; 
and  clearly,  within  the  cases  cited,  an 
acceptance  of  the  property  by  the  defend- 
ants, without  any  offer  to  return  the  same 
at  any  time,  deprives  them  of  any  right 
to  make  complaint  of  its  inferior  quality. 
Till'  judgment  should  he  afhrmed,  with 
costs.  All  concur,  except  ANDREWS,  J., 
not  vo  ting. 


CIJAWCOUH,  EX  PAKTE. 


203 


Ex  parte  CRAW'COUR. 

In  re  ROBERTSON. 

(9  Ch.  Div.  419.) 

Court  of  Appeal.    June  27,  1878. 

This  was  an  appeal  from  a  decision  of 
Mr.  HeKibtror  Ilazlitt,  acting  as  cliief 
juilRC  in  banlvruptcy. 

t)n  the  L"Jth  of  November,  1S77,  an  aRree- 
meiit  in  writing  was  entered  into  liotwem 
\V.  A.  ItohertHon.a  trader,  of  tlie  one  pnrt, 
and  l.ewin  Crawc(iur&  Co.,  ii|)l)i)lKter('rs, 
of  the  othi-r  port,  wliieh  contained  tlie  fol- 
lowing provinions: — 

(1.)  "That  Le win  CrawcouriS: Co. thereby 
let  to  UobertHon,  and  he  tliereliy  hired  of 
them,  tlie  sevcrnl  articles  of  fiirnlture  and 
effects  tielongingto  tlieni  nientioncd  in  the 
Hcheiiule  tlitreto,and  which  were  ailmitted 
by  l!ot)ertson  to  be  of  tlie  value  of  £<13  4s. 
10(1.,  adding  thereto  ij  per  cent,  on  the  said 
value  less  the  amount  of  first  instalment. 

(2.)  "The  said  articles  of  furniture  and 
effects  are  hired  by  W.  A.  Ilol)ert8nn  upon 
the  following  terms  and  conditions:  — 

(:i.)  "  \V.  A.  Robertson  is  to  |)ay  to  Lew- 
inCrawcour  &  Co.  the  sum  of  £10  on  the 
signing  heieof,  £5  on  the  4th  of  .lanuary 
next,  and  .t.j  on  the  4th  day  of  each  suc- 
ceeding calendar  month  during  the  con 
tinuance  of  tliis  airreement,  and  is  also  on 
the  signing  hereof  to  deposit  with  Lewin 
Crawcour  &  Co.  |ironiissory  notes  for  the 
total  amount  of  the  instalments  to  be 
paid  hereunder,  such  promissory  notes  be- 
ing given  as  collateral  security,  and  entire- 
ly without  prejudice  to  the  title  of  Lewin 
Crawcour  &  Co.  in  or  to  the  said  furniture 
and  effects,  and  of  all  rights  reserved  to 
them  by  this  agreement,  and  subject  to 
this  8tii)nlation,  that,  in  case  of  the  goods 
being  seized  and  removed  by  Lewin  Craw- 
cour &  Co.  under  clause  5,  the  whole  of 
Buch  promissory  notes,  or  so  many  of 
them  as  shall  then  be  current,  shall  after 
Buch  seizure  and  removal  l)e  given  up  on 
demand  to  \V.  A.  Robertson,  and  shall 
from  and  after  such  seizure  and  removal 
become  alisolutely  void. 

(4.)  "  \V..V.  Robertson  is  to  keep  thereat 
of  the  premises  in  which  t!)e  said  furniture 
and  effects  arc  placed  regularly  and  punc- 
tually paid,  and  not  to  part  with  posses- 
sion of,  remove,  or  otherwise  deal  \>ith 
the  said  goods,  or  any  part  thereof,  nor  to 
part  with  the  possession  of,  or  assign  his 
interest  in,  tin?  liouse  or  premises  wherein 
the  said  goods  may  be,  without  the  con- 
sent in  writing  of  I..ewiu  Crawcour  &  Co. 
being  first  obtained. 

(.').)  "In  the  event  ofnon-payment  of  any 
of  the  above  notes  on  the  days  upon 
which  tliey  respectively  become  d\ip,  or  ol 
the  bread)  of  any  of  the  conditions  herein 
expressed  to  be  performed  by  W.  A.  Rol)- 
ertson,  or  in  case  the  said  furniture  and 
effects,  or  any  jiart  tliereof  shiill  be  seized 
or  taken  in  execution  nnd"r  any  process 
of  any  court  either  of  law  or  of  equity, 
Lewin  Crawcour  &  ('o.  may  by  llieni- 
Belves,  or  others,  tiieir  servants  or  agents, 
enter  into  any  liouse  or  place  where  the 
said  articles  of  furniture  or  any  of  tliem 
shall  then  be,  and  seize,  remove,  and  re- 
take possession   of   tlie  same,  as   iu  their 


first  ami  foriner  esl.-ite,  notwithstanding 
any  paynients  made  liy  W.  A.  Ibiliertsou, 
and  Rol)ertHon  shall  be  barn-d  from  com- 
mencing or  maintaining  any  action  o( 
trespass  or  otiierwise  l>y  reason  of  such 
taking  [lossfssion  as  aforesaid,  or  of  the 
temporary  (lossession  of  the  premises 
wherein  the  said  goods  may  be.  for  such 
time  as  may  be  reasonaldy  occupied  In 
snch  removal,  or  for  the  recovery  of  uny 
part  of  the  moneys  paid  under  lliis  agree- 
ment, wldch,  upon  such  default  or  breach 
as  aforesaid,  it  is  hereby  agreeil  are  to  be 
absolutely  forfeited  to  Lewin  Crawcour  & 
Co. 

((!.)"  I'pon  payment  by  W.  .\.  Robert- 
son to  l^ewin  Crawcour  &  Co.  of  the  full 
sum  of  £<■>.">  178.  lOd.  by  tlie  InstalmentH 
aforesaid  tlie  agreement  shall  be  dei-med 
completed, and  shall  thenceforth  close  and 
determine,  and  the  said  fiirniturp  and 
effects  shall  become  and  be  the  pr<iperty  of 
\V.  .\.  Robertson;  but  until  the  whole  of 
the  sqid  sum  sliall  have  been  paid  the  said 
articles  of  furniture  and  effects  shtill  re- 
main tlie  sole  and  absolute  i>roperty  of 
Lewin  Crawcour  &  Co.,  and  are  only  let 
on  hire  to  \V.  A.  Robertson,  who  hereby 
agrees  to  taUe  all  proper  cure  of  the  same 
during  the  hiring,  and,  in  case  of  damage 
by  tire  or  otherwise,  W.  A.  Robertson  will 
bear  the  loss  or  risk." 

Tlie  articles  mentioned  in  the  schedule 
to  the  agreement  consisted  of  ordinary 
household  furniture.  .Soon  after  the  exe- 
cution of  the  agreement  they  vs-ere  deliv- 
ered at  Robertson's  private  residence.  t)n 
the  ilth  of  January,  1n7s,  Robertson  filed  a 
li(|Uidation  petition,  iindei  which  a  trus- 
tee was  appointed,  who,  on  the  L'fith  of 
February,  took  possession  of  the  furniture 
comprised  in  the  agreement  of  the  -J'.itli  of 
November.  Ifs77,  which  was  still  in  oelit- 
or's  house,  and  remained  in  possession  of 
it  until  the  lUth  of  March,  1n7S.  when  Lew- 
in  Crawcour  &  Co.  took  possession  of  it. 
Tlie  instalments  of  rent  due  in  lebrunry 
and  .March  had  not  been  paid.  On  the 
L'Jnd  of  .March  the  trustee  olitaincd  from 
the  court  of  bankruptcy  an  injunction  re- 
straining Lewin  Crawcour  &  Co.  from  re- 
moving the  furniture,  and  the  injunction 
was  coiitiiiued  from  time  to  time.  On  the 
30tli  of  .March  the  trustee  gave  notice  of 
an  application  to  the  court  for  an  order 
declaring  tiiat  the  furniture  formed  part 
of  the  property  of  the  debtor  divisilde 
among  Ins  cieditors.  and  belonged  to  the 
trustee.  This  application  was  heard  on 
the  L'4tll  of  .May,  ls7.s.  On  behalf  of  the 
trustee  it  was  contended  that  the  hiring 
!  agreement  was  void  as  against  him.  be- 
cause it  laid  not  been  registered  under  the 
Inlls  of  sale  act,  ls.')4;  and,  iiiiireover.  that 
he  was  entitled  to  the  furniture  as  beinar, 
at  the  conimencenii'iit  of  the  li'iuiilatinn. 
in  the  order  and  ilisposiiion  of  the  debtor, 
with  the  consent  of  the  true  owners.  On 
the  latter  point  a  number  of  atlidnvits 
were  filed  by  Lewin  Crawcour  &  Co.  to 
Iirove  that  there  is  a  notorious  custom  of 
I  letting  furniture  upon  tiTiiis  similar  to 
those  of  the  agreement  of  the  Ltitli  of  No- 
vember, 1^77,  and  it  was  saiil  that  this 
custom  excluded  the  operation  of  the  ro- 
[luted  ownership  clause.  These  ntlldavlts 
were  answered  liy  a  nniuber   of   allidavits 


204 


CliAWCOUn,  EX  PARTE. 


filpd  on  belinlf  of  the  triistoo,  which  denied 
the  cxisteiu'f,  or  at  any  rate  tlienotoiiety, 
of  any  such  rustoiu.  Tlie  voj-istrar  held 
that  the  agreement  oiiglit  to  have  been 
rcKistered  as  a  l)i!l  of  sale,  and  tliat,  hy 
reason  of  its  non-registration,  it  was  void 
neaaainst  the  trustee;  and  on  tliis  ground, 
without  going  into  tlie  question  of  order 
and  disposition,  he  made  the  oriler  asked 
for,  granting  a  perpetual  injunction  to 
restrain  Lewin  C'rawcr.ur  &  Co.  from  in- 
terfering with  the  furniture.  Lewin  Craw- 
eour  &  Co.  appealed. 

AVinsIow,  Q.  C,  and  Finlay  Knight,  for 
appellants,     i'ate  Lee,  for  trustee. 

JESSEL,  M.  R. :— I  cannot  concur  in  the 
ground  of  the  registrar's  decision. 
Whether  it  can  lie  supported  on  other 
grounds  will  be  a  matter  for  discussion 
at  a  future  time.  The  registrar  rested  the 
title  of  th3  trustee  simply  on  this,  that  the 
agreement  w us  a  hill  of  sale,  and  that  it 
was  void  as  against  the  trustee  because  it 
was  not  registered.  It  appears  to  me 
that  the  agreement  was  not  a  bill  of  sale 
by  Robertson,  who  is  the  person  by  whom 
a  bill  of  sale  must  have  been  executed  if  it 
is  to  be  hit  by  the  bills  of  sale  act.  Rob- 
ertson never  had  any  projjerty  in  the 
goods.  Crawcour  &  Co.,  to  whom  they 
originally  belonged,  agreed  to  let  them 
on  hire  to  Robertson  at  a  rent  to  be  paid 
by  instalments,  with  this  further  provi- 
sion, that,  until  all  the  inst/ilnipnts  had 
been  paid,  the  property  should  remain  in 
■Crawcour  &  Co.,  ;nul  that,  if  any  instal- 
ment should  not  be  paid  when  it  became 
due,  they  should  be  at  liberty  to  retake 
possession  of  tlieir  own  goods,  and  the  in- 
stalments already  paid  should  be  forfeited 
to  them.  That  does  not  make  the  docu- 
ment a  bill  of  sale  e,\ecuted  by  Robertson, 
or  a  license  given   by  hfm  to  take  posses- 


sion of  jiersonal  chattels  as  security  for 
a  debt.  It  is  sim|)ly  one  of  the  tirnis  of 
the  letting  for  hire  and  conditional  sale 
of  the  goods  l)y  Crawcour  &  Co.  to  him. 
When  the  liquidation  petition  was  filed, 
some  instalments  of  the  rent  being  over- 
due, Crawcour  &  Co.  attempted  to  take 
possession  c»f  their  goods.  It  appears  lo 
me  that  they  were  entitled  to  do  so,  and 
tliat  there  was  no  reason  for  granting 
the  injunction. 

JAMES,  L.J. : — I  am  of  the  same  opin- 
ion. 

BRETT,  L.  J.:— It  is  said  that  this 
agreenientcontains  a  licenseby  Robertson 
to  Crawcour  &  Co.  to  take  possession  of 
his  goods,  and  that  it  therefore  amounts 
to  a  bill  of  sale  within  sect.  7  of  the  bills  of 
sale  act.  The  only  way,  however,  in 
which  Robertson  could  have  any  interest 
in  the  goods  or  arj'  right  to  deal  with 
theai  was  liy  virtue  of  the  agreement  it- 
self. It  is  said  that  the  agreement  passed 
the  property  in  the  goods  to  Robertson, 
and  that  by  it  he  at  the  same  time  mort- 
gaged the  goods  to  Crawcour  &  Co.,  and 
gave  them  a  license  to  seize  them.  The 
sole  question  therefore  is,  whether  the 
property  in  the  goods  passed  to  Robert- 
son. In  my  opinion  the  property  did  not 
pass  by  the  agreement.  To  hold  that  it 
did  would  be  clearly  contrary  to  the  ex- 
pressed intention  of  the  parties.  Nor  do  I 
think  that  the  property  passed  by  the  de- 
livery of  the  goods,  which  was  made  in 
accordance  with  the  agreement.  In  my 
opinion  the  property  could  not  pass  until 
all  the  instalments  had  been  paid,  and  that 
has  not  been  done  yet. 

The  api)tal  was  allowed,  with  costs 
fixed  at  S.'M,  and  the  case  was  referred 
back  to  the  registrar  to  try  the  question 
of  reputed  ownership. 


CROFOOT  V.  BEXNETT 


307 


CROFOOT  V.  BENNETT. 

(2  N.  T.  258.) 

Court  of  Appe.ils  of  New  York.      Dec.  Term, 
18-lS. 

Sylvester  Crofoot  eiied  Bennett  in  the 
supreme  court  in  trespass  for  taking  n 
quantity  of  brick.  On  the  trial  lieforo 
Willard,  J.,  at  tljc  Wasliinf^ton  circuit  in 
1S47,  it  appeare<l  tliat  Hiirace  Crofciot,  on 
tliu  :i(l  of  September,  1S4(;,  in  consideration 
of  11  previous  indehtedness  to  and  a  iii'W 
advance  by  tlie  defendant,  transferred  to 
liiiii  tiy  writing;  all  the  brick  in  two  kilns 
previously  burnt  in  Crofoot's  yard,  sup- 
posed to  be  forty-tive  thousand,  and  for- 
ty-three thousand  to  l)e  taken  out  of  a 
new  kiln  which  lie  was  then  puttiii;;  up. 
It  was  stated  in  the  writing  tliat  the  de- 
fendant had  paid  for  the  brick,  and  that 
they  were  to  be  Kood  merchantable  brick. 
On  the  next  day  the  defendant  went  to 
the  yard  for  the  purpose  of  having  all  the 
brick  delivered  to  him,  and  on  that  occa- 
sion the  lirick  already  burnt,  as  well  as 
those  unburnt.  were  pointed  out  tr)  thede- 
fendant  by  Horace  Crofoot, and  thedcfend- 
ant  took  possession  of  the  preiuise.s  where 
the  lirick  were  and  gave  directions  about 
them;  but  none  of  thosis  in  the  unburnt 
kiln  were  counted  out  or  marked,  or  set 
apart  from  the  residue.  Horace  Crofoot 
agreed  with  tlie  defendant  to  burn  the 
unlinished  kiln,  which  he  accordingly  did. 
On  the  (itii  of  October  following  Horace 
Crofoot  executed  to  the  [ilaintiff,  who  was 
his  brother,  a  bill  of  sale  of  all  the  bricks 
in  such  new  kiln.  On  the  Sth  of  the  s;nne 
month  the  defendant  opened  tlie  Uiln  and 
took  therefrom  and  carried  away  the 
(|iiantity  wl'ich  had  been  purchased  by 
him  out  of  that  kiln,  and  for  that  taking 
the  iilaintiff  brought  this  action.  .Justice 
Willard  held  that  these  facts  made  out  a 
good  delivery  to  the  defendant  on  the  :.'d 
and  .'!d  days  of  September  of  the  bricks  in 
(lUCBtlon;  that  as  against  him  the  plnin- 
tiff  had  no  title,  and  that  the  defense  was 
made  out.  The  defendant  had  a  verdict, 
which  the  supreme  court  refused  to  set 
aside  on  bill  of  exceptions,  and  the  ])lain- 
tiff,  after  judgment  in  tlie  defendant's 
favor,  appealed  to  this  court. 

A.T.Wilson,  for  appellant.  J.  Parr}', 
for  respondent. 

STUONU,  .1.  It  is  said  in  the  opinion  of 
the  supreme  court,  that  the  title  to  the 
unburnt  brick  passed  to  the  defendant  on 
the  :!(!  of  September,  before  they  had  been 
separated  from  the  mass  in  the  new  kiln, 
or  burnt.  In  this  I  taiiik  they  were 
wrong,  ('hancellor  Kent  says  that  when 
the  goods  sold  are  mingled  with  others, 
they  must  be  ascertained,  designated  and 
separated  from  the  mass,  before  the  prop- 
erty can  pass.  It  is  a  fundamental  prin- 
ciple pervading  everywhere  the  doctrine 
of  sales  of  chattels,  that  if  goods  be  sold 
while  mingled  with  others,  by  number, 
weight  or  measuie,  the  sale  is  ineompU-te. 
and  the  title  continues  with  the  seller, 
until  the  bargained  property  be  separate<l 
and  identitied.  (J  Kent's  Com.  •)9(>.)  These 
rules  are  fully   supported  by  the  authori- 


ties cited  by  the  chancellor.  The  reason 
Is,  that  the  sale  cannot  apply  to  any  ar- 
ticle until  it  is  clearly  di-^ignated,  and  Its 
Identity  thus  ascertaiaerl.  In  the  case  un- 
der consideration,  it  couM  not  be  said 
with  certainty  that  any  particular  brick 
belonged  to  the  defendant  until  they  had 
been  separated  from  the  mass.  If  some  of 
those  in  an  unfinished  state  had  been 
sjjoiled  in  the  burning,  or  had  been 
stolen,  they  could  not  have  bci'ii  consid- 
ered  as  the  [iroperty  of  the  defendant,  and 
the  loss  would  not  have  fallen  upon  him. 
But  if  the  good.-,  s(dd  are  clearly  iilenti- 
lied,  then,  althou;jli  it  may  be  necessary 
to  number,  weigh  or  measure  them,  in 
order  to  ascert;iiii  what  would  be  the 
Iiricc  of  tlie  whole  at  a  rate  agreed  niion 
lietwecn  the  parties,  the  title  will  pass. 
If  a  Hock  of  sheep  is  sold  at  so  much  the 
head,  and  it  is  agreed  that  they  shall  be 
counted  after  the  sale  In  order"  to  deter- 
mine the  PI. tire  jirice  of  the  whole,  the 
sale  is  valid  and  complete.  Hut  if  a  given 
number  out  of  the  whtde  are  sold,  no  title 
is  acquired  by  the  (lurchaser  until  they 
are  separated,  and  their  identity  thus 
ascertained  ami  determined.  The  distinc- 
tion in  all  these  cases  do(>s  not  depend  so 
much  upon  what  is  to  be  done,  as  upon  the 
oliject  which  is  to  be  effected  1-y  it.  If  that  is 
specification, the  property  is  not  changed; 
if  it  is  merely  to  ascertain  the  total  value 
at  designated  rates,  the  change  of  title  is 
effected.  In  this  case,  the  judge  who  tried 
the  cause  did  not  deride  directly  that  the 
defendanr  hail  aciiuired  a  title  to  the 
bricks  which  lie  took  before  they  had  been 
separated.  The  (juestion  was,  however, 
distinctly  raised  by  the  plaiiitifl's  counsel, 
and  was  in  effect  decided  against  him. 
Although  the  judge  erred  in  that,  thejudg- 
nieiit  will  not,  therefore,  be  reversed  if  in 
Icfjal  intcndnieat  the  error  eoulii  not  in 
any  m;iiiner  have  prejudiced  the  plaintiff. 
It  conhl  not  have  had  that  effect  if  the 
plaintiff  must  still  have  failed  in  the  suit 
hid  the  point  been  decided  in  his  favor. 

If  the  counsel  for  the  plaintiff  hail  in- 
sisted that  the  question  of  delivery  of  the 
brick  should  have  been  suliniitted  to  the 
jury  as  one  of  fact,  there  was  enough  in 
the  evidence  to  have  called  upon  the  judge 
to  adopt  that  course;  l)iit  this  position 
was  not  taken  liy  the  counsel;  on  the 
contrary,  he  called  upon  the  jiiilge  to  de- 
cide it  as  a  (iiiestion  of  law.  upon  facts 
which  were  not  controverted,  and,assui>-.- 
ing  those  (acts  to  lie  true,  the  juilne  de- 
cided that  point  correctly.  The  delivery 
was  not  simply  of  the  specilic  bricks 
eviiitually  taken  by  the  plaintiff,  but  of 
the  whole  with  the  privilege  of  selection. 
The  formal  delivery  of  theyard  must  have 
been  designed  by  the  parties  to  carry 
with  It  the  iiossession  of  the  bricks,  or  it 
would  have  been  a  mere  Idle  ceremony. 
The  defendant  then  took  possession  of  tlie 
whole,  and  gave  directions  atiout  burning 
those  which  were  yet  in  an  naliiiished 
state.  It  made  no  difference  that  such 
directions  were  given  to  one  who  had  an 
in'erest  in  a  portion  of  them,  and  had 
previously  owned  the  whole.  If  one  sel|i 
an  article,  and  delivers  it.  the  delivery 
would  be  none  the  less  effectual  because 
the  vendor  happened   to   be  employed  to 


20^ 


CROrOOT  V.  BENNETT. 


perform  somo  auditional  work  upon  it, 
ovon  at  luH  own  expense.  Anil  surely, 
fIoorl>?  UMiy  be  delivereil  by  ono  to  another 
having  an  interest  in  them,  althougli  the 
prior  possessor  may  not  tJiU't  with  all  bis 
title  to  the  whole.  Uiuler  these  circum- 
stances, trespass  would  not  lie  at  the  suit 
of  the  vendor,  or  bis  subsequent  vendee. 
Tlie  goods  being  in  the  possession  of  an- 
otlier,  the  vendee  took  his  title  with  an 
implied,  if  not  a  positive,  notice  of  the 
rights  of  the  possessor,  to  which  the  in- 
terest acquired  by  him  was  subordinate. 
In  order  to  maintain  tresi)ass,  it  is  nec- 
essary that  the  plaintiff  sliould  have  tlie 
actual  possession  of  the  proi)erty,  or,  an 
absolute  title  to   it,  which   gives  the  right 


of  possession.  In  this  case,  while  the  ac- 
tual possession  was  in  the  defendant,  it 
does  not  appear  that  any  possession  what- 
ever bad  been  delivered  to  the  plaintiff; 
neither  had  he  the  absolute  property  in 
any  of  the  brick  until  the  defendant  had 
exercised  his  right  of  selection.  The  de- 
fendant had.  therefore,  made  out  a  full 
defense  to  the  plaintiffs  action,  as  was 
correctly  decided  by  the  jud«e;  and  al- 
though he  may  have  placed  the  decision 
on  different  and  possibly  insutlicient 
grounds,  yet,  as  the  judgment  was  right, 
it  should  not  be  disturbed. 

JEVVETT,  C.  J.,  and  BKONSON,  J.,  dis- 
sented. 


CROSS  V.  pi;  riCRs. 


:ii 


CROSS  et  al.  v.  TETERS.  : 

(1  Greenl.  370.) 

Supreme  .Tudiciul  Court  of  Maine.    Nov.  Terra, 
1821. 

Replevin  for  n  ])ipe  of  l)riin(ly  and  divert 
olhiT  Koods.  Tlie  defendant  pleaded  that 
the  piiiperty  of  the  Kiiod»  \va»  in  one 
\\illiiini  I'lirker,  1  ruverwin«  the  pi<i[)erly 
cif  the  pl.Miiitiff,  on  which  traverse  JHsne 
wiiH  taken.  1 1  wnH  admitted  at  the  trial 
of  thiH  i.«sne  tliat  the  |  roperl y  of  the^oodH 
WBH  orijrinnllv  in  the  plaintiff,  anil  so  eon- 
tiiuied  nnless  altered  liy  a  sale  to  Parker; 
tliey  havinfi  lieen  attaelied  as  his  |)r()perty 
liy  the  defendant,  who  was  a  depnty  sher- 
iff, by  virtne  of  writs  in  liiH  liundH  at  the 
sviit  of  (JnHtavuH  Hului  and  of  Benajtnin 
T.  Chase. 

To  prove  the  debt  of  Ilolin  &  Chase  the 
defendant  railed  Parker  as  a  n  itness.  who 
was  ohjei-teil  to  hy  the  plaintiff's  eonnsel 
as  Ix'inK  interested,  and  also  as  having 
coiniiiitted  a  fraud  in  obtainini;  tlieKoods 
improperly  from  the  plaintiffs  for  the 
express  purpose  of  ha vinjr  them  attached 
at  the  suit  of  Holm  and  Cltase.  Rut  the 
jndfie  who  presided  at  the  trial  of  the 
cause  admitted  liiiu  to  testify,  it  appear- 
ing that  he  had  not  paid  the  plaintiffs  for 
tlie  property. 

Parker  testified  that  on  the  tenth  or 
eleventh  day  of  March  last  he  called  a:  the 
plaintiff's  store,  and  ])urchased  tlie  irooils 
replevied  on  a  credit  of  four  months, 
wliich  he  took  away  on  the  eleventh  of 
March.  Kivin-;  no  note,  and  rereivins  no 
l)ill  of  lliem  at  that  time,  thon^rh  one  of 
the  ]ilaintiffs  was  present  at  the  dell  very, 
hut  too  liusy  to  write  one,  or  to  receive  u 
note.  He  said  that  the  plaintiffs  and  two 
other  niercliants  offered  him  other  coods 
on  credit,  which  he  declineil  purchasing; 
and  that  lie  stopiied  payment  on  the  same 
eleventh  day  of  .March. 

On    liiH    cross   examination    he    testified 
that    he   had    fjiven    sundry  notes    to    the 
<"uml)erland    P>ank    and    to    the    P)nnk    of 
Portland,  amounting    to   .'Sl'.KM.n.'),  a    note 
to  John  \Villi;ims  for  ^'.UKI,  an<l  another  to 
Benjamin    T.  Chase   for  $:tl.'i.  all    of  which 
were  indorsed  liy  Holm,  hut  none  of  them 
were     payalile   on    the     11th    .March.     He 
further   testified,    and    it    was    proved    liy 
other  witnesses,  that  on  the  day  and  two 
days  preceding  his  failure  he  went  to  eight 
different  stores  in  the  same  town  and  pur- 
chased sundry  articles  of    merchandize,  all 
on    credit,  and    for  wliicli    he  was   still  in- 
debted;  l>uf  which    he  said    he    inirchased 
with  no  oilier  view  than  to  trade  upon  as 
usual,    and    that   he   did    not     know    that 
Holm    knew  of    these    purchases.      It    was 
proved    that    Parker   had    all    sai<l  goods 
carried  to  his  slio|)    on    the    lOtli    and  Hth  i 
days  of    March;   that    (Ui  the  aftern<ion  of  j 
the   11  til  which  was  Saturday,  at    the    ur- 
gent reipiest  of    Holm,  to  which    he    made 
some   olijections.  he   gave   n    note  to  saiil  ! 
Holm  for  #Jsl.-).70.  this  heing    the  amount,  ' 
as    ascertained     liy    a    hasty    estimation,  ' 
which  Holm  had  indorsed    for    him  on  the  i 
notes  aforesaid,  none   of  which  were  then  ! 
payable; — that  at  the  same  time   he    took 
up  the  note  he   had   given    to    H.  T.  Clinsel 


for  5:515,  which  was  indorsed  by  Holm,  ami 
was  not  payable,  giving  inHtead  of  it  his 
own  note,  without  on  indorser,  and  pay- 
able on  demand  ;- that  he  took  no  dln- 
charce,  or  bond  of  indemnity  from  Holm; 
—that  Holm  &  Chase,  the  same  afternoon, 
on  obtaining  said  notes  payable  on  de- 
mand, immediately  sued  out  writs  bgainst 
Parker,  and  attaihed  the  whole  profierty 
in  his  possession,  of  which  the  gooris  re- 
plevied were  a  part  ;— that  after  <'hnse 
had  given  up  the  note  indorseil  by  Holm, 
and  taken  Parker's  own  note  in  Its  stead, 
lie  said  to  Holm  that  his  own  attachment 
ought  to  be  laid  on  the  gooils  first,  be- 
cause he  had  thus  exonerateil  lilin  from 
his  liability  as  indorser,  to  whi<-li  Holm 
assented  ;  — and  that  Parker  had  lieen 
trans.-icting  business  at  <i  loss  liefore  this 
time,  anil  on  one  occasion  appeared  dls- 
turlieil  when  n  person  entered  his  shop 
after  the  goods  were  removed  thither, and 
found  him  offering  tea  under  its  value. 

The  counsel  tor  the  plaintiffs  hereupon 
conteniled,  Ist  that  here  was  sufiicieiit  evi- 
dence of  a  conspiracy  bet  ween  Holm  and 
Parker  to  [irocure  the  goods  for  the  ex- 
press purp()Seot  their  alt acliment  by  H(dm, 
for  wliicli  cause  the  contract  of  sale  was 
void,  as  being  n  frau<l  on  the  creditors, 
aiid  they  might  well  reclaim  the  goods:  — 
L'd  that  if  the  jury  were  not  sntislled  of 
the  '•cir.spiracy,  yet  If  they  believed  from 
the  evidence  that  Park-',  when  he  bar- 
gaineil  for  anil  received  the  goods,  well 
knew  that  he  was  insolvent,  antl  meant 
not  honestly  to  pay  according  to  the 
terms  of  tlie  Cfintract.  and  thereby  Ini- 
po.st-i!  on  the  plaintiffs,  the  contract  was 
void  for  that  imposition. 

Put  the  judge  instructed  the  jury  that 
though  at  the  time  of  making  the  pur- 
chases from  the  plaintiffs  and  others  it  ap- 
peared that  Parker  was  insolvent,  yet  his 
insolvency,  unattended  by  any  mlsrepre- 
Hentations  or  falsehood  in  obtaining  the 
credit,  would  not  render  the  sale  void; 
and  that  unless  they  believed  that  he  ob- 
taineil  such  credit  with  a  fraudulent  In- 
tent and  secret  agreement  or  undcrstauil- 
ing  wit!)  Holm  that  the  gooils  should  be 
attached  by  him  to  secure  his  debt,  the 
plaintiffs  could  not  maintain  tlie  action; 
but  th.it  if  they  believed  that  the  goods 
were  purchased  with  such  Intention  and 
understanding,  their  verdict  ought  to  be 
for  the  plaintiffs.  The  jury  tliereupon  re- 
turned a  verdict  for  the  plaintiffs,  which 
was  to  be  set  .-islde  and  a  new  trial  grant- 
ed if  the  judge's  instructions  were  errone- 
ous, or  if  Parker  was  improperly  admitted 
as  a  witness. 

Todd,  for  plaintiffs.  E.  Whitman,  for 
defendant.     Longfellow,  In  reply. 

MEF-LEN,  C.  .T.  afterwards  delivered  the 
opinion  of  the  court,  as  follows: 

Two  i|uestions  are  presented  for  consid- 
eration; one.  as  to  the  admission  of 
Parker  as  a  witness;— the  other  ns  to  the 
opinion  deliv.re.l  by  the  presiding  justice 
to  the  jury. 

As  to  the  first  i|uestlon,  the  objection 
seems  unfounded  —The  case  finds  tbiit  the 
goods  the  witness  purchased  have  not 
been  liaid  for:— He  therelorestnnds  entire- 


212 


CROSS  0.  FETERS. 


ly  indifferent.  He  is  liable  to  tlie  plaintiffs 
for  tlie  pi-ioe  of  tlie  rooiIw,  if  tliey  do  not 
succeed  in  this  action:  and  will  remain 
liable  to  Holm  if  they  do  succeed.  Let 
this  cause  be  decided  either  way,  one  of 
the  witnesses  debts  must  be  cancelled  an<l 
the  other  will  I'cniain  due  and  unpaid.  To 
this  poiut  may  be  cited  the  case  of  Bean 
r.  Bean,  12  Mass.  20.  Tlie  objection  as  to 
interest,  therefore  fails.  But  it  is  urjjed 
that  be  is  inadmissible  on  the  ground  of 
bis  connection  with  the  alleged  fraud.  In 
the  case  in  4  Mass.  '!)2,  (  Bliss  v.  Thomi)- 
soii,)  cited  by  the  plaintiffs' counsel,  such 
an  (jbjection  is  considered  as  of  no  im- 
portance. 

As  to  the  other  point  reserved,  tlie  pre- 
siding justice  instructed  the  jury  that  un- 
less they  should  be  satisfied  that  the 
goods  reiilevied  were  purchased  by  Parker 
pursuant  to  some  secret  agreement  or  un- 
derstanding between  him  and  Holm,  so 
that  they  might  be  attached  by  Holm  for 
bis  indemnity,  they  ought  to  tind  in  fa- 
vour of  the  defendant.  It  is  now  neces- 
sary to  examine  and  determine  whether 
that  instruction  was  correct.  If  not,  the 
verdict  must  be  set  aside  and  a  new  trial 
granted.  As  it  appears  by  the  report  of 
the  case  that  no  arts  or  devices  were  prac- 
ticed, nor  any  false  representations  or  pre- 
tences whatever  were  made  by  Parker  at 
the  time  of  imrchasing  the  goods  on  credit, 
or  at  any  other  tiir.e  by  means  of  which  lie 
obtained  the  credit ;  and  as  the  jury  ha  ve 
found  that  there  was  no  such  c(jncert  or 
secret  agreement  or  understanding  be- 
tween Parker  and  Holm;  and  as  it  does 
not  appear  that  Parker  knew,  at  the  time, 
that  he  was  insolvent,  though  in  fact  he 
was  so;  the  simiiie  inquiry  is  this:  "  If  a 
man  doing  business  as  a  trader  and  in 
good  credit  (tliough  insolveut  at  the  time, 
but  not  aware  of  that  fact)  obtains  goods 
oil  credit  in  the  town  where  he  lives  and  is 
known,  without  practising  any  artifice  or 
making  any  false  representations  or  pre- 
tences, or  in  fact  any  representatioiis  or 
liretences  at  all;  —  and  removes  these 
goods  to  his  own  store  openly  :  Can  such 
vender,  upon  learning  the  insolvency  and 
circumstances  of  the  purchaser,  reclaim 
the  goods  in  the  possession  of  the  pur- 
chaser or  maintain  replevin  for  them 
against  the  attaching  officer,  on  the  prin- 
ciple of  his  legal  right  to  rescind  the  bar- 
gain?"— This  seems  a  clear  and  fair  state- 
ment of  the  question. 

If  in  the  present  case  the  plaintiffs  had 
a  right  to  rescind  the  contract  of  sale,  it 
must  be  on  the  ground  of  fraud  on  the 
part  of  Piirker  the  purchaser ;  an<l  th<iugh 
in  many  instances  contracts  maj'  he 
avoided  by  reason  of  the  fraudulent  con- 
duct of  one  of  the  parties:  and  the  party 
attempted  to  be  charged  may  for  that 
cause  be  excused  from  the  periormance  of 
his  contract ;— yet  in  eases  of  the  kind  un- 
der consideration,  where  a  vender  claims 
the  right  of  rescinding  a  contract  of  sale 
which  has  been  carried  into  effect  and  ex- 
ecuted on  his  part  by  a  delivery  of  the  ar- 
ticles s(dd,  it  would  seem  that  bis  right  to 
rescind  must  be  founded  on  such  a  fraud 
on  the  part  of  the  vendee  as  would  render 
him  liable  to  an  indictuient;  or  if  not, 
would  at  least  subject  him  to  an  action  of 


[deceit:  or  In  other  words,  that  a  vender 
has  not  a  legal  right  to  rescind  a  contract 
of  sale  and  reclaim  the  goods  sold,  unless 
j  such  fraud  was  practised  in  making  the 
I  contract,  that  if  the  vender  did  not  rescind 
,  it,  he  would  recover  damages  against  the 
]  vendee  for  the  injury  sustained  liy  that 
j  fraud. — But  without  advancing  any  ilirect 
opinion  as  to  the  correctness  of  this  priii- 
cii;le,  it  anjiears  to  us  to  be  clear  that  it 
would  require  as  much  proof  of  fraud  and 
false  representation  to  maintain  an  action 
against  a  vendee  in  the  aliove  circumstan- 
ces, as  an  action  against  a  third  person, 
by  wliose  fraudulent  and  false  representa- 
I  tioiifi  tlie  vender  was  induced  to  give 
:  credit  to  the  vendee. — Artifice,  misrepresen- 
i  tation,  falsehood  and  fraud  constitute  the 
j  foundation  of  all  such  prosecutions. 
I  It  may  not  be  useless  to  e.xainine  tlie 
I  subject  in  l)oth  points  of  view. 
j  In  the  case  we  have  stated,  would  an  in- 
i  dictment  lie  against  the  |iurcliaser'.' 
i  1.  Cheating,  at  common  law,  was  an  in- 
i  dictable  offence;  but  to  constitute  the  of- 
i  fence  two  things  were  necessary.  First, 
;  the  act  must  be  of  such  a  nature  as  to 
I  affect  the  public.  Secondly,  it  must  be 
j  such  against  which  common  prudence 
could  not  have  guarded.  1  Ha«k.P.  C. 
i  ch.  71.     Kex  V.  Wheatly,  2  Burr.  112."). 

2.  The  statute  of  33  Hen.  S,ch.  1,  made  it 
•  an  offence  to  obtain  money,  goods, etc.  by 

a  false  token.  Though  this  statute  in 
some  respects  altered  tlie  common  law,  it 
did  not  affect  those  cases  against  which 
common  prudence  would  be  a  sufficient 
securitv. 

3.  The  statute  of  30  Geo.  2,  c!l.  1,  goes 
still  further  and  makes  it  an  indictable 
offence  to  olitain  money,  goods,  etc.  upon 
a  false  pretence.  Before  this  last  statute 
was  enacted  it  was  not  an  offence  to  oli- 
tain money,  goods,  etc.  by  a  false  pretence, 
unless  false  tokens  were  used.     See  .\noii.. 

:G  Mod.  ]0.">.  Queen  v.  Macarty,  Id.  3(11. 
>  Queen  v.  Orliell.  Id.  42.  Queen  v.  Dixon, 
:  Id.  61.  King  v.  City  of  Chester,  .5  Mod.  11. 
i  Queen  v.  (Jrantbaiu,  11  Mod.  222.  Reg.  v. 
j  Jones,  2  Ld.  Rayin.  1013. 
!  This  statute  was  never  in  force  in  Mas- 
sachusetts, as  we  are  informed  by  Par- 
sons C.  J.  in  the  case  of  Commoinvealtli  v. 
Warren,  (i  Mass.  72.  But  the  Stat.  1S15,  ch. 
i:3i),  contains  similar  provisions,  and  Ihere- 
I  fore  those  decisions  which  %ve  meet  with 
[  in  the  English  books  upon  the  Stat.  (ieo. 
t  2,  are  applicable  to  the  statute  of  Ifilii. 

In  the  case  of  Young  in  error  v.  Rex, 3  D. 
&  K.  us.  it  is  decided  that  to   bring   a  case 
i  %vithin  llie  act   of   Cieo.    2,   there   must   be 
false  [ireteiices  or  stories, and  misrepresen- 
tations, deceiving  and  intended  to  deceive 
the    person    with    whom    the   offender   is 
dealing,   and     fraudulently   contrived   for 
I  tliat   purpose.  —  Buller  J.   says,   "Barely 
asking  another  for  a  sum  of  money,  is  not 
Isutticient:  but  soraepretence  must  lie  used, 
I  and  this   pretence   must  fce  false,  and    the 
[intent     is     necessary     to    constitute     the 
I  crime." — The  case  of  Rex  v.  Lara, 6  D.«S;  E. 
j  505,  sliews  the  nature  of  those  false  tokens 
I  and  pretences  which  are  necessary  to  suyi- 
port  an  indictment. — Lara  pretended  that 
he    wished    to    purchase    certain    lottery 
tickets  tea  large  ainount.     He  did  so, and 
paid    for    them    by   a  draft   on    a   certain 


CROSS  V.  PETKK* 


213 


bunker  with  wliora  he  said  he  had  fundH,  i 
thoiiK>>  nt  the  time  ho  Iviww  he  hud  siut.— 
Tlie  court  (k-cided  tliiit  tlic  indictment 
foidd  ni't  l)e  maintained.  Lei.  Ken.von 
observed  that  Larii  used  notliiiiK  hat  lii« 
own  UHHertion  tt)  tjain  credit. — "tliat  lie 
Kut  down  and  drew  a  cliecl<  on  a  lianker; 
hut  it  would  lie  ridifuious  to  call  that  a 
falHe  tolcen:— that  it  left  hin  credit  just 
where  it  was  before.  What  tlie  dci'ciidnnt 
dill  was  lii;;hl.v  rei>reliensiideand  immoral; 
hut  as  he  used  no  false  tokens  to  aetoni- 
plisli  his  designs,  judgment  must  bear- 
rested." 

Hawk.  B.  l,ch.71,  sect.  2.  says  that 
"the  deceitful  receiving  money  from  one 
man  to  anotlier's  useupona  false  ))re;ence 
of  liavinn'  a  msssa^e  and  order  to  that 
purpose,  is  not  punishable Ijy  criminal  jiros- 
ecution,  because  it  is  accconipaaicd  by  no 
manner  of  artful  contrivance;  but  wholly 
depends  on  a  l)are.  naked  lie." 

The  above-cited  else  of  ('<»mmon  wealth 
'.  Warren  was  decided  before  the  act  of 
Inssachusetts  for  the  punishment  of 
leats  v,-ai  passed.  Had  it  been  in 
.orce  at  the  time  of  tlie  trial,  Warren 
would  probably  have  been  convicted,  as 
he  used  several  false  ijretences  to  obtain 
eredit  l)y  means  of  wliicli  his  fraud  was 
successful.  The  case  further  shews  that  if 
another  person  had  been  connected  with 
him  in  tlie  fraud,  the  offence  woulci  have 
anioiinted  to  a  conspiracy  without  any 
fnls;-  pretences;  and  ini;:lit  have  been 
charged  and  punished  as  such. — This  dis- 
tinction it  is  of  importance  to  notice,  as  it 
ma.v  have  a  bearing  on  tlie  main  (piestion 
reserved  in  this  cause ;  and  fortliat  reason 
it  may  under  this  head  be  also  remarl-.eil 
that  where  two  or  more  conspire  to  do 
an  iiiila  Willi  act.tir  a  lawful  act  for  an  nii- 
hiwful  piii|iose,  it  is  a  crime;  nml  the  ^ii^t 
of  the  conspiracy  is  the  unlawful  confed- 
eracy. Coiiimon wealth  v.  .Iu<ld  iV  ;il.  1' 
Mass.  . "51'!).  Commonwealth  v.  Tibbetts  & 
al.  2  Mass.  ."):!•;. 

(Jur  ne.\t  iiuiuiry  is  whether,  in  the  case 
stated,  an  action  of  deceit,  or  an  action 
on  the  case  in  nature  of  deceit,  would  lie 
for  dnmnne.-^  occasioned  by  the  fraud. — 
Oar  law  books  must  answer  the  oueslion. 

Some  of  the  cases  relatinji  to  tliis  point 
are  founded  upon  an  alleged  fraud  and  de- 
ceit on  the  part  of  the  vender:  others  on 
the  part  of  the  vendee. — 'I'liose  which  are 
grounded  upon  an  express  warranty  do 
not  come  within  thernntreof  our  present 
view.  In  .Medina  v.  StouKliton  1  Ld. 
Raym.  .')!):!,  it  is  settled  that  pcsscssion  is 
a  warranty  oi  the  implied  kind,  that  the 
goods  belong  to  the  seller;  for  possession 
is  a  colour  of  title, and  an  action  lies  upon 
a  bare  allirinntion  of  the  possessor  that 
the  goods  are  his  own.  Itoberts  on  frauds 
.'iL';!.— "  .\n  action  npoii  the  ease  lies  fora  de- 
ceit when  a  man  does  an.v  deceit  to  tlie 
damage  of  anoth)>r.  Com.  Dig.  .\ction  on 
tlie  case  lor  deceit  A.l."  "  Kraud  with- 
out damage  or  damage  without  irauil 
gives  no  cause  of  action — both  must  eon- 
cur."  Baily  v.  .Merrell,  :!  Bulst.  !».-..  l!oh- 
erts  .")2:i.  "No  action  lies  against  a  man 
for  his  declaring  that  a  cert.ain  person 
would  have  given  him  a  certain  sum  for 
his  farm  ;  though  no  such  offer  was  ever 
maile.— It  is  a  mere  ground    of  estimation 


with  which  no  prudent  man  should  be  nat- 
Istied;"  — but  a  declaration  of  the  fact 
that  the  rent  was  so  much,  when  it  wan 
not,  whereby  a  purchaser  is  deceived,  will 
support  an  action.  See  lioherts  ."i2:i,  and 
the  cases  there  cited.  .Many  other  cases  or 
false  or  fraudulent  representations  on  the 
part  of  the  vender  might  he  stated,  shew- 
iiig  the  principles  on  which  actions  for  de- 
ceit maybe  maintained  against  them  :— 
but  these  are  sufficient.  It  is  much  more 
to  our  present  purpose  to  e.xaiiiiiie  thuHe 
cases  in  which  actions  have  been  support- 
ed against  venilees  or  receivers  of  mone.v, 
tor  fraud  anil  deceit  on  their  part,  and  the 
facts  necessary  to  support  such  actions. 
In  the  case  of  ISullington  v.  (Jerrish,  15 
.Mass.  l.'iC.  Walker  was  guilty  of  gross 
fraud,  and  stated  a  series  of  falsehoods 
well  calculated  to  gain  him  credit,  by  In- 
spiring coatidence  in  his  responsibility;  — 
and  by  means  of  this  fraud  and  false  pre- 
tence, he  succeeded  In  obtaining  credit  to 
a  large  nnionnt.  In  Badger  v.  I'hliiiiey,  l.'> 
Mass.  :5.")H.  Band,  the  minor,  obtained 
credit  by  falsely  allirming  that  he  was  of 
full  age:  and  this  atlirmaliDn  was  point- 
edly made,  too.  in  reply  to  the  iiii|uiries  of 
Badger.  Putnam.  .1.  in  giving  the  opin- 
ion of  till-  court  says.  "  the  goods  were  de- 
livered to  the  plaiiilin  Kand  because  he 
undertook  to  pay  for  them  anddtclared 
he  was  of  full  age.  The  basis  of  this  con- 
tract has  failed  from  the  fault  it  not  the 
fraud  of  the  infant:  and  the  fraud  which 
induced  the  contract,  furnishes  the  ground 
for  the  impeachment  of  it.  Thus  in  the 
case  of  Butliiigton  v.  (ierrisl-.  where  one 
purchased  goods  on  credit  by  means  of 
false  representations,  it  was  holden  the 
vender  had  not  parted  with  his  iiroperty. 
but  might  maintain  replevin  against  the 
at  tacliiag  ollicer." 

In  the  case  before  mentioned  of  Com.  v. 
W.Miren.  the  court  observed  that  the  man 
defiauded  should  s  ek  his  remedy  by  a> 
tion.  In  that  instance  falsi-  and  fraudu- 
lent representations  had  been  made.  In 
till!  ini|iortant  case  of  I'asley  v.  Kreeman, 
:!  1).  &  E.  ")1,  Buller  ,J.  observes,  "The  fraud 
is  that  the  defendant  procured  the  plain- 
tiff to  sell  gooils  on  credit  to  one  whom 
they  would  not  otherwise  have  trusieil. 
by  "asserting  that  which  they  knew  to  lie 
false.  Here  then  is  the  frauil  and  the 
means  by  which  it  was  coinmitted  :  — the 
assertion  alone  is  not  sullicient:  b.it  the 
plaintiff  must  go  on  and  (irove  that  it 
was  false  and  that  the  defendant  knew  it 
to  be  so."  The  action  of  Basley  v.  Kree- 
man was  maintained  ii|ion  the  principle 
that  the  defendant  had  been  guilty  of  that 
fraud  and  misrepresentation  to  induce 
tlie  plaintiff  to  sell  goods  on  credit  lo 
Kalch.  which  would  have  mainiained  the 
action  against  I'aii  li  if  he  had  hiinseif  biH'ii 
gniltv  of  the  fraud  and  falsehood.—  Buller 
,).  concludes  with  observing  that  "If  a 
man  will  wickdily  asiert  that  which  ho 
knows  to  be  false  and  thereby  draw  his 
neighbor  into  a  heavy  loss  he  is  liable  In 
damages."  .\shliuist  .l.in  delivering  his 
opinion  savs  "  In  order  to  make  it  action- 
able it  must  be  averred  that  t!ie  defend- 
ant intendiui.'  to  dec-iveand  defraud  the 
plaintiffs,  did  d.reilfiilly  enconrnge  and 
persuade  them    to  do  the  act  and  for  that 


214 


CROSS  V.  PETERS. 


purpose  made  the  falseafflrmation.in  con- 
He(|iience  of  which  tlie.v  did  act."  "If  A. 
Keiul  his  Mervant  to  liuy  a  house,  who 
buys  it  and  pays  for  it,  and  the  seller 
affirms  to  A.  that  he  was  not  paid, 
whereby  A.  pays  him  ;  an  action  lies.  So 
if  a  man  affirm  himself  to  he  of  full  age, 
when  he  is  an  infant,  and  thereby  procure 
money  to  be  lent  on  mortfiase."  See 
('om.  Dip;,  action  on  the  case  for  deceit  A. 
10.  and  the  authorities  there  cited;  also 
I?ean  v.  I!ean,  12  Mass.  20.  Numerous 
other  instances  of  similar  imposition  and 
falsehood  minht  be  collected  and  stated; 
but  it  is  not  necessary,  as  they  are  all 
founded  on  the  same  principle,  viz.  that 
the  money,  goods  or  credit  had  been  ob- 
tained by  means  of  false  and  fraudulent 
assertions  of  the  defendant.  We  have  not 
been  able  to  find  a  siiiRleinstance  in  which 
an  action  of  this  kind  has  been  supported, 
except  where  the  party  charged  had  suc- 
ceeded in  his  plan  by  false  assertions  and 
fraudulent  misrepresentations.  lii3Chitty 
on  Pleading  are  a  number  of  forms  of  dec- 
larations in  actions  of  deceit — one  for  sell- 
ing goods  as  and  for  a  larger  quantity 
than  there  was ; — one  for  selling  a  piece  of 
land  as  contaitiing  more  acres  than  it  did 
contain; — one  for  misrepresenting  the 
value  or  profits  of  a  certain  trade; — one 
lor  representing  himself  as  authorized  by 
a  third  person  to  do  a  certain  act  or  re- 
ceive a  certain  sum  of  money;  and  one  for 
personating  the  plaintiff  In  each  of  these 
forms  there  is  a  strong  averment  that  the 
defendant  made  a  diiect,  false  and  fraud- 
ulent rejiresentation  of  facts,  with  an  in- 
tent to  accomplish  his  object  and  defraud 
the  plaintiff;  and  that  by  means  thereof 
he  had  succeeded. 

We  have  thus  taken  a  brief  review  of 
some  of  the  general  principles  of  law  ap- 
plicable to  indictments  for  frauds  and  de- 
ceits, anil  to  actions  on  the  case  brought 
by  the  party  injured  against  him  who 
commits  the  fraud  ;  whether  he  is  the  ven- 
dee of  the  goods  or  his  artful  and  fraudu- 
lent friend.  It  a[)pears  by  the  precedents 
to  which  we  have  alluded,  that  in  case  for 
a  fraudulent  purchase  or  obtainment  of 
money,  the  declaration  must  contain  an 
allegation  that  the  plaintiff  was  imposed 
upon  by  artifice  and  false  declarations 
— calculated  and  intended  to  deceive;  and 
in  .'ill  the  cases  which  we  have  cited,  the 
piosecution  on  civil  action  wiis  maintained 
or  defeated,  according  as  tlie  proof  aj) 
peared  on  trial  touching  the  false  and 
fraudulent  represents tions alleged  to  have 
been  mude  by  theparty charged  :  heknow- 
ing  them  to  be  false  and  deceptive. — Judg- 
ing, then,  from  legal  fctrnis  and  ilecdded 
cases,  it  seems  to  l)e  settled  that  deceptive 
assurances  and  false  representations 
fraudulently  made  are  essential  to  thesup- 
port  of  an  inilictmr'ut  or  civil  action  for  a 
fraud  committed  in  the  manner  above 
supposed;  and  of  course,  tliat  such  proof 
is  equally  necessary  to  the  sui)port  of  an 
action  of  replevin  by  the  vender  who 
claims  the  riglit  of  rescinding  the  sale  he 
has  made  on  the  ground  of  fraud  in  the 
vendee.  Let  us  for  a  moment  look  at  the 
facts  in  the  case  at  bar.  —  Parker,  it  turns 
out,  was  insolvent  when  he  purchased  the 
goods,  but  there  is  no  proof   that   he  was 


apprized  of  thefact;— he  bought  thegoods 
on  credit  in  usual  form,  refusing  the  offer 
of  further  credit  from  the  plaintiffs :— he 
made  no  professions  or  promises; — no  rep- 
resentations or  assertions;  practised  no 
other  art  thRii  ol)taining  the  credit  with- 
out disclosing  hisinsolvency  ;  a  fact,  which 
it  does  not  appear  that  he  himself  km-w. 
These  facts  are  essentially  different  from 
those  appearing  in  the  cases  we  have  col- 
lected and  stated;  in  which  it  is  declared 
not  only  that  there  must  have  been  asser- 
tions and  represencations  made— but 
I  they  must  also  have  been  false:  and  to 
I  complete  the  proof  the  defendant  must 
have  known  them  to  be  false.  Under 
these  circumstances  we  are  not  aware  of 
any  legal  principles  on  which  an  indict- 
ment could  be  sustained  or  an  action  for 
deceit  against  Parker;  and  we  do  not  per- 
ceive how  it  is  competent  for  the  plaintiffs 
to  rescind  the  contract  they  have  made 
and  reclaim  the  goods  in  this  action,  un- 
less upon  the  ground  of  concealment, 
which  has  been  also  urged  by  the  counsel 
for  the  plaintiffs,  and  which  we  will  pres- 
ently consider. —As  the  jury  have  decided 
that  no  secret  understanding  existed  l)e- 
tween  Parker  and  Holm  of  a  fraudulent 
nature  relating  to  this  property,  we  do 
not  see  why  the  rule  of  law  is  not  appli- 
cable in  this  instance,  melior  est  conditio 
defendentis.  The  plaintiffs  may  have  l)ecn 
guilty  of  negligence  or  want  of  due  care; 
but  as  it  regards  the  question  before  the 
court  the  defendant  and  he  whom  he  rep- 
resents seem  not  liable  even  to  that  imi)u- 
tation. 

But  is  is  contended  by  the  counsel  for 
the  plaintiffs  that  a  vender  may  rescind  a 
contract  of  sale  on  account  of  fraud  in  the 
vendee  by  concealment  of  the  truth  as 
well  as  by  false  assertions  and  misrepre- 
sentations; that  the  consequences  are  the 
same  and  of  course  the  la  w  is  the  same. 
Before  answering  this  argument,  it  is  nat- 
ural to  inquire  wherein  this  concealment 
consisted. — It  is  stated  by  the  counsel  for 
the  i)laintiff  that  it  was  the  duty  of 
Parker,  as  an  honest  man,  to  have  dis- 
closed his  insolvency  to  the  plaintiffs  at 
the  time  he  ajiplied  to  purchase  the  prop- 
erty The  first  reply  to  be  given,  is,  that 
it  does  not  appear  in  tlie  case  that  he 
knew  he  was  insolvent. — He  might  he  sus- 
picious of  it,  and  he  might  not  be;  on  that 
point  we  have  no  information.  It  d(  es 
not  appear,  then,  that  he  concealed  any 
facts  which  he  was  liound  to  disclose. — If 
the  principles  of  law  respecting  this  part 
of  the  canse  were  to  be  carried  to  the 
same  extent  t)y  the  court  .-is  they  have 
been  in  the  argument  of  the  counsel,  all 
conlidence  in  dealing  woidd  be  destroyed, 
and  perfect  confusion,  as  to  the  title  of 
personal  property,  would  be  the  conse- 
(uience. — The  vendee  would  never  feel  safe 
in  purchasing,  nor  any  other  person  safe 
in  purchaslcg  of  him,  lest  the  creditor 
should  afterwards  discover  that  the  ven- 
dee, when  he  [)uichased,  was  actually  in- 
solvent, and  that  those  who  afterwards 
bought  of  him  knew  of  the  insohency; 
and  then  should  come  forivard,  with  a 
sweeping  claim  of  the  property  he  had 
sold,  on  the  principle  of  rescinding  the  sale 
for  a  fraudulent  concenlmeut.— But   sup- 


CROSS  0.  PETERS. 


215 


posine;  thnt  Parker  did  know  of  his  own 
insolvency  nt  the  time  of  Ills  contract:  wo 
are  perfectly  Ha ti.sliod  tliat  tlie  Hale  iH  not 
void  on  tlie  Ki'onnd  of  fiaud  becauKelie  did 
not  discloKe  tlie  fact. 

It  is  true,  the  fraudulent  concealment  by 
the  veniler  of  a  secret  defect  in  an  article 
Hold  by  liini,  wholly  unknown  to  the  ven- 
dee, may  be  the  foundation  of  an  action 
for  daiiiji>j;eH  by  him  HKHinst  tlie  vender, 
and  perhaps  authorize  ilio  vendee  to  re- 
scind the  contract  on  discovery  of  the 
fraud;  because  the  law  implies  a  warranty 
that  the  Koods  or  articles  sold  are  of  a 
merchantable  <]uality.  liilb.  Evid.  1S7. 
Roberts  U'£i.  IJut  we  apprehend  no  case 
can  be  found  by  whicli  it  has  been  settled 
that  the  law  implies  anything  like  a  war- 
ranty on  the  part  of  a  purchaser  that  he 
is  a  man  of  property,  and  sound  as  to  his 
pecuniary  concerns.  — In  tlie  commerce  and 
intercourse  of  mankind,  such  an  implica- 
tion was  never  un<lerstood  to  exist. 

It  is  also  true  that  in  the  case  of  policies 
of  assurance  tlie  concealment  of  the  truth 
Is  nearly  allied  to  misrepresentation.  If 
the  fact  be  material,  it  uvoids  tlie  policy. 
But  it  is  not  on  the  ground  of  fraud  in  the 
concealment  that  the  contract  is  void  ;  be- 
cause if  tlie  concealment  be  the  effect  of 
accident  or  mistake,  net;lif;ence  or  inad- 
vertence, It  is  equally  fatal  to  the  policy 
as  if  it  were  intentional  and  fraudulent. — 
See  Marshal,  347,  and  cases  there  cited. 
But  it  will  be  difficult  to  find  a  case  where 
a  policy  was  declared   void,  because  the 


assured,  when  the  policy  was  effected,  was 
insolvent  and  yet  concealed  that  fact:— 
still  the  reasoning  of  the  plaintiffs'  counsel 
seems  to  leail  to  the  conclusion  that  the 
[lolicy  would  In  such  a  case  be  void 
b'jcause  the  assured  was  insolvent  and 
unable  to  pay  the  note  he  ha<l  Riven  for 
the  premium.— We  apprehend  no  Cfinclu- 
sion  can  be  drawn  from  these  principles  of 
ttielawof  insurance  unfavourable  to  those 
on  which  we  place  the  decision  of  this 
cause. 

We  have  before  stated  that  there  miKht 
be  a  conspiracy  between  two  or  more  to 
obtain  goods  or  money  from  another 
without  any  false  pretences,  etc.  and 
which  would  he  punishable  as  a  crime. 
In  reference  to  this  principle  of  law  the 
jury  were  instructed  that  if  they  believed 
such  conspiracy  or  secret  urrangement 
existed  between  Parker  and  Holm,  though 
I  there  were  no  false  pretences  or  rejiresen- 
tations,  they  ought  to  find  a  verdict  for 
the  plaintiffs,  but  not  otherwise. 

It  is  to  be  lamented.  If  the  plaintiffs  have 
lost  tlieir  property  by  reposing  confidence 
where  it  was  not  deserved;  but  this  If 
not  a  circumstance  for  our  consideration 
in  the  decision  of  the  cause. 

On  the  whole,  after  much  thought  and 
the  most  careful  examination,  we  are  sat- 
isfied with  the  correctness  of  the  liistnic- 
tions  which  were  given  to  the  jury;  that 
the  motion  for  a  new  trial  must  be  over- 
ruled, and  that  there  be  an  entry  of  judg- 
ment according  to  the  verdict. 


CUNNIXGIIAM  0.  ASHBUOOK. 


.'17 


CUNNINGHAM  v.  ASHBROOK  et  al. 

(20  Mo.  553.) 

Siiprciui:  Court  of  Missouri.    March   Term, 
1855. 

Acti(jn  Ity  one  Cunningliani  UKiinRt 
AHlibrook  and  otIierH  for  the  price  of  eer- 
tulii  lioKN.  .Ju(l;j;iueut  of  Doiisuit,  and 
plaintiff  liriiiurH  error. 

At  tli(!  friiil,  lipfore  a  jury,  it  appeared 
tliat  defendants  were  onKaKi'd  iu  slui)t;li- 
terinn  ami  packing  liogH  for  tlieniHelveM, 
and  al.so  sImukIi terinK  f(jr  other  i)ackerH. 
Tlie.v  had  an  arrauKeinent  with  one  .\lc- 
.MliHter  and  one  W  hitaker,  wlio  were 
pufkers,  that  eueh  should  have  one-third 
of  all  the  hoRH  KlaUKhtered  hy  them,  de- 
fendants attendiim  tt»  the  huyiog  and  the 
slauKhterine:,  for  the  sale  of  the  offal. 
I'laintiff'n  Iio-^h  were  l>ou;^ht  liy  a  [lernon 
who  honyrht  hoK«  for  defendnnts,  and 
oceaHionally  for  the  other  two  |)a<'kers, 
and  who  leHtitied  that  in  Ijuyini;  these 
liojiH  he  did  not  know  wlio  would  take 
then).  The  lions  were  taken  todefendants' 
slaughter  hou.-'e,  and  There  killed,  and  de- 
fendants notified  plaintiff  to  call  next  day 
at  the  paekinji  liouHe  of  McAllister,  who 
would  take  the  hotrs,  to  see  them  weiuhed 
and  set  his  pay.  That  night,  however, 
the  Hianghter  house  and  the  liogB  were  de- 
stroyed hy  fire.  It  was  in  evidence  that 
it  was  customary  for  licjgs  to  Le  weighed 
at  the  packing  house,  in  the  presence  of 
the  seller,  who  then  received  his  [lay,  and 
one  witness  testified  that  by  custom  the 
seller's  ownership  continued  till  the  hogs 
were  weighed.  The  lower  court  gave  the 
following  instruction:  "If  the  hogs  were 
sold  liy  net  weight,  to  lie  ascertaineil  by 
weighing  the  lio^s  after  they  were  slaugh- 
tered and  clcaiied.  and  not  to  be  paid  for 
until  so  weighed,  and  the  hogs  wei-e  de. 
stroyed  by  an  accidental  fire  before  they 
were  weighed,  then  the  loss  falls  upon  the 
seller,  unless  he  shows  that  the  parties  In- 
tended the  sale  to  lie  absolute  and  com- 
plete before  the  weighing. 

Clover  iSt  Kichardson,  (with  whom  was 
0.  C.  Woods,)  for  plaintiff  in  error.  J.  A, 
Kasson,  for  defendants  in  error. 

LKONAHl),  .J.  The  only  things  essen- 
tial to  a  valid  sale  of  personal  property  at 
couunon  law  were,  a  proper  subject,  a 
price,  and  the  consent  of  the  contracting 
parties,  and  when  these  concurred,  the 
sale  was  complete,  and  the  title  jinssed 
withoiil  anything  more.  (2  Black.  I'oni. 
447;  i!l<ixam  v.  Sanders.  4  liarn.  &  (."res. 
'J41.)  The  term  sale,  however,  in  its  lar- 
gest sense,  may  include  every  agreement 
for  the  transferring  of  ownership,  whether 
immeiliate  or  to  lie  completed  afterwards, 
and  goods,  in  reference  to  the  disposition 
of  them  by  sale,  may  be  consiilered  as  ex- 
isting separately  and  ready  for  immediate 
delivery,  or  as  a  part  (>f  a  larg"r  mass 
from  which  tliey  ninst  be  separated  hy 
counting,  weighing  or  measuring,  or  as 
goods  to  be  hereafter  procured  and  sup- 
plied to  the  buyer,  or  to  be  manufactured 
for  his  use.  (ioods  of  the  tirst  sort  are 
the  only  jiroper  subjects  of  a  common  law 
sale,  which  is  strictly  a  transaction   oper- 


ating as  a  present  transfer  of  ownership, 
ami  does  not  include  executory  contractH 
for  the  future  sale  and  delivery  of  personal 
property,  although  there  are  some  ap|>ur- 
eutly  anomalous  eases  In  our  books  in 
which  transactions  in  reference  to  g(iod8 
to  be  separated  from  a  mass  seem  to  have 
heeu  treated,  where  there  had  been  a  con- 
structive deli  very,  as  valid  sales,  producing 
a  present  change  of  property. 

The  general  rule,  however.  Is  otherwise, 
and  all  the  different  soits  of  goods  to 
which  we  have  referred,  except  the  tirst. 
are.  under  our  law,  the  proper  sulijects 
only  of  executory  agreements — contractu 
for  the  future  sale  and  delivery  of  them. 

The  Iloman  law,  however.  It  Is  said, 
dealt  differently  with  this  suliject.  In 
that  system  of  jurisprudence  (Hell  on  Con- 
tract of  Sale, 'J, )  "a  sale  was  not  an  im- 
mediate transmutation  of  property,  liiit  a 
contract  of  mutual  and  personal  engage- 
ments for  the  transference  of  the  thing  on 
the  one  hand  and  the  payment  of  the  price 
on  the  other,  without  regard  to  the  time 
of  performance  on  either  part,  that  being 
left  to  be  regulated  by  the  agreement  of 
the  parties,  the  seller  being  liound  to  de- 
liver the  thing  in  jiroperty  to  the  buyer  at 
the  time  agreed  on,  ami  the  buyer  to  pay 
the  price  iu  the  manner  settled  between 
them.  The  distinction  was  carefully  cili- 
served  bet  ween  the  direct  right  of  prop- 
erty (jus  in  re)  conferred  liy  delivery,  and 
the  indirect  right  (jus  ad  rem)  to  demand 
of  the  seller  delivery  of  the  thing  sold. 
There  tlius  arose  out  of  the  contract  the 
donlilc  relation  of  delitor  ami  creditor,  as 
to  llie  thing  sold  and  the  price  to  lie  paid 
for  it.  Corresponding  with  these  rela- 
tions, two  actions  were  given,  both  |ier- 
sonal  and  direct;  one  for  the  thing  sold, 
the  other  for  the  price  due.  'I'he  claim  for 
the  price  being  alisolute  on  delivery  or 
tender  of  tlie  thing  and  the  demand  for 
the  thing  conditional,  iirovided  it  had  not 
in  the  meantime  perished  without  fault  of 
the  seller.  "  Thus,  it  is  seen,  a  Homan  sale 
was  applicable  to  all  the  possible  circum- 
stances in  whicli  goods  to  lie  transferred 
coulil  be  found,  end  the  respective  engage- 
ments of  buyer  and  seller  (  under  such  a 
transactinn,)  were  specifically  enforceil 
l>y  the  appropriate  actions. 

Although  at  common  law  consent  alone 
wassullicient  to  constitute  a  valid  sale, 
the  statute  of  fraud  has  now  intcrveneil 
and  other  formalities,  ore  prescribed, 
which  must  be  observed  or  what  was  be- 
fore a  valid  transfer  of  property  is  now  of 
no  validity.  Thest.-itute,  lieginning  wliere 
the  common  law  stopped,  reipilies  some 
one  of  these  solemnities  to  lie  adde<l  to  the 
transaction  before  it  shall  be  considered 
as  complete,  so  as  to  effect  a  change  of 
ownership;  and  tlie  matter  here  relied  up- 
on, as  the  statute  evidence  of  the  comii'.e- 
tion  of  the  contract,  was  the  change  of 
possession.  This  provision  of  tin- statute 
implies  it  is  saiil  a  delivery  nf  the  tliina 
sold  on  the  part  of  the  debtor,  and  an  ac- 
ceptance of  it  liy  the  luiyer,  with  an  inten- 
tion on  the  one  side  to  part  with,  ami  on 
the  other  to  accept  the  ownership  of  it ; 
and  it  is  not  enough  that  the  mere  nat 
ural,  actual,  curporenl    possession   sliould 


218 


CUNNINGHAM  v.  ASHBIIOOK. 


be  chunsed,  but  there  must  be  a  chanire  of 
the  civil  possession,  wlik'li  is  a  holding  of 
the  thing  with  the  design  of  keeping  it  <is 
owner;  and  this  brings  us  to  an  exam- 
ination of  the  instruction  complained  of, 
and  which  resulted  in  non-suiting  the 
plaintiff. 

The  proof  given  shows  (or.  at  least, 
conduces  to  show,  which,  for  the  present 
purpose,  is  the  same  thing,)  that  the  thing 
sold  had  been  delivered  in  point  of  fact  to 
the  bu.ver,  and  the  true  question  in  the 
cause,  (indeed  the  only  one  that  could  be 
raised,)  was,  whether  this  cliange  of 
actual  possession  was  also  a  change  of 
the  civil  possession;  or  in  other  words, 
whether  the  hogs  were  delivered  and  re- 
ceived by  the  parties  respectivel.v,  with 
the  intention  of  changing  the  ownership. 
If  the  facts  were  so,  tlie  sale  was  perfect, 
the  title  passed,  and  the  loss  fell  upon  the 
new  owner. 

It  is  to  be  remarked  that  this  is  the  sale 
of  a  specitii-  commodity,  the  whole  drove, 
and  not  of  a  part,  to  be  ascertained  by 
counting  out  the  required  number,  and 
therefore,  the  title  passed  as  soon  as  the 
bargain  was  completed  by  the  delivery. 
It  was  not  a  transaction  in  relation  to 
the  sale  of  part  of  a  mass,  which  could 
not  take  effect  as  a  present  sale,  immedi- 
ately changing  the  property,  until  the  sep- 
aration was  iictually  made;  and  it  is  pos- 
sible some  confusion  may  have  arisen  liere 
by  not  dearl.v  distingui^ihing  between  the 
sale  of  a  specific  commodity,  clearly  sep- 
arated and  distinguished  from  all  others, 
as  a  specific  drove  of  stock,  and  of  an  in- 
definite commodity,  as  a  hundred  barrels 
of  corn  out  of  the  party's  crib,  or  a  liun- 
dred  mules  out  of  his  drove,  when  the 
seller  is  bound  to  separate  and  identify  the 
particular  part  sold,  l)efore  it  can  pass  in 
property  to  the  purchaser. 

Nor  is  there  any  objection  to  the  valid- 
ity of  this  transjiction  as  a  present  sale, 
growing  out  of  the  supposed  uncertainty 
as  to  the  price.  Although  there  is  no  sale 
until  the  price  is  settled  between  the  par- 
ties, .vet  it  is  settled,  within  the  meaning 
of  this  rule,  when  the  terms  of  it  are  so 
fixed  thut  the  sum  to  be  paid  cnu  be  ascer- 
tained without  further  reference  to  the 
parties  themselves;  and,  indeed,  by  the 
common  law,  the  price  is  fixed  within  this 
rule,  even  when  it  appears  that  parties 
have  agreed  that  it  shall  be  the  reasona- 
ble wcjrth  of  the  thing  sold,  leaving  it  to 
the  tribunals  to  ascertain  the  Jimouiit,  if 
they  cannot  agree  upon  it  themselves. 
(Bell  on  Sales,  IS-20;  Acebal  v.  Levy,  10 
Bing.  3.S2.) 

This,  then,  was  a  present  agreement  be- 
tween these  parties  for  the  sale  of  a  spe- 
citiccommodityfor  a  price  settled  between 
then),  so  as  to  be  capable  of  future  ascer- 
tainment, without  further  reference  to 
themselves,  and  we  repeat,  immediately 
passed  the  title  to  the  buyer,  if  the  cere- 
mony of  delivery  required  by  the  statute 
of  frauds  was  complied  with,  and  there 
having  been  a  delivery  in  fact,  the  whole 
question  was,  as  before  remarked,  with 
what  intention  that  delivery  was  made, 
whether  merely  that  the  hogs  might  be 
weighed,  neither  party  being  bound  in  the 
meantime  by  what  had   passed    between 


them,  or  as  the  formal  completion  of  the 
bargain  to  bind  the  parties  and  vest  the 
ownership  in  the  purchaser. 

We  Clime  now  to  an  examination  of  the 
instruction  complained  of,  the  substance 
of  which  is,  that  If  the  hogs  were  sold  by 
net  weight,  to  be  ascertained  by  weigh- 
ing after  they  were  slaughtered  and 
cleaned,  then  the  presumption  that  the 
sale  was  completed  by  the  delivery  is  met 
and  repelled,  and  the  loss  falls  on  the 
plaintiff,  as  owner,  unless  he  shows  that 
the  parties  intended  the  sale  to  be  com- 
plete upon  the  delivery.  The  jury  would, 
no  (loul)t,  have  so  understood  the  direc- 
tion, when  they  came  to  appl.v  it  to  the 
case,  and  such,  too,  we  suppose,  was  the 
meaning  of  the  court ;  but  we  do  not  con- 
cur in  this  view  of  tlie  law.  Certainly,  this 
circumstance  was  jiroper  for  the  jury  up- 
on the  question  of  the  intention  of  the 
parties  in  changing  the  actual  possession, 
and  might  have  afforded  a  very  proper 
topic  of  comment  to  counsel,  in  arguing 
the  question  of  fact  before  them;  but  we 
do  not  think  anj^  well  considered  case  has 
gone  the  length  of  declaring  that  it 
changed  the  strong  natural  presumption 
to  be  derived  from  the  actual  delivery  of 
the  property,  and  imposed  upon  the  other 
party  tlie  necessity  of  showing  that  "the 
parties  intended  the  sale  to  be  absolute 
and  complete  before  the  weighing,"  and 
we  feel  well  assured  that  there  is  no  prin- 
ciple upon  which  this  position  can  be 
maintained.  We  find  it  fre(iuently  repeat- 
ed in  the  books,  that  when  anything  re- 
mains to  be  done  by  tlie  seller,  such  as 
counting,  weighing  or  measuring,  the  title 
does  not  pass;  and  thi9  is  certainly  cor- 
rect, when  this  operation  is  necessary  in 
order  to  se|)arate  the  goods  from  a  larger 
mass,  of  wiiich  they  are  a  part;  but  that 
is  not  this  case,  and  we  think  that  by 
keeping  the  distinction  between  a  specific 
and  an  indefinite  commodity  in  view,  most 
of  the  cases  upon  this  subject  can  be  ex- 
plained, and  their  apparent  conflict  recon- 
ciled. It  is  also  certainly  true  that,  in  de- 
termining the  question  as  to  th((  purpose 
of  the  parties  in  changing  the  actual  pos- 
session, the  fact  that  the  price  is  to  be 
sul)sequently  ascertained  by  reference  to 
the  net  weight,  and  then  paid,  is  proper 
to  go  to  the  jury;  but  possession  is  so 
much  of  the  essence  of  property,  as  it  is 
that  alone  which  enables  us  to  enjoy  a 
thing  as  pro[)crty,  and  the  natural  con- 
nection between  property  and  po.-isessiou, 
es|)ecially  in  movables,  is  so  strong,  that 
the  presumption  arising  from  a  change  of 
actual  possession,  that  it  was  intended 
also  as  a  change  of  the  property,  is  not, 
in  our  view,  overcome,  as  a  matter  of  law, 
by  the  fact  here  relied  upon,  that  the  thing 
bargained  for  was  to  be  paid  for  by 
weight,  to  be  ascertained  after  the  deliv- 
ery. 

Weshall  content  ourselves  by  a  reference 
to  a  few  cases  whidi  we  consider  directly 
in  point,  in  support  of  the  position  we 
have  taken.  Scott  v.  Wells,  (6  Watts  & 
Serg.  8G8,)  was  a  case  of  the  sale  of  a  raft 
of  lumber  at  twelve  dollars  per  thousand 
feet,  to  be  ascertained  by  measui-ement. 
There  had  been  a  delivery,  and  the  raft 
being  lost  by   a  freshet,  the  question  was, 


CUXXIXGIIAM  V.  ASIinilOOK. 


•il!) 


wlictlicr  thn  property  [)asHeil  so  aH  to  cast 
the  lowH  upiin  the  buyer.  The  court  lie- 
low  instructed  tliejury  that  " [jarfieH  muy 
tnake  a  Hale  of  koocIh  ho  as  to  i>aHH  the 
property  by  the  actual  delivery  thereof, 
without  (irnt  fixing  the  quantity  upon 
which  the  price  is  to  be  computed,"  and 
the  Hupienie  court  approved  of  the  direc- 
tion, .luiliic  (iibson  remurkiiiii.  "that  a 
Kale  in  imperf(ct  only  when  it  in  left  o|ien 
for  the  addition  of  terniH  iieceH-<ary  to 
complete  it,  or  where  it  is  defective  in  come 
indispensable  ingredient,  which  cannot  be 
supplied  from  extrinsic  sources.  I'ut 
wiien  possession  is  delivered  pursuant  to  a 
contract  w  hich  contains  no  provision  for 
additional  terms,  the  parties  evince,  in  a 
way,  not  to  be  mistaken,  that  they  sup- 
pose the  liart;ain  to  be  consummated.  " 

Macomber  v.  I'arker,  (ll!  Pick.  ]N'.', )  was 
a  sale  of  a  (luaiitity  of  brick  in  a  kiln  at  a 
certain  rate  per  thousand,  to  be  aHcer- 
tained  by  counting;,  and  the  court,  in  de- 
liverinu  its  opinion,  says:  "it  is  true  the 
bricks  were  to  be  counted,  but  that  was 
to  be  done  lo  enable  the  parties  to  come 
to  a  settlement  of  their  accounts,  and  not 
lor  the  purpose  of  completing  the  sale. 
TakiuK  the  whole  of  Iluntin^'H  testimony 
together,  this  we  think  is  the  reasonalile 
Inference  to  be  drawn  from  it.  If  the 
bricks  had  been  actually  delivered,  there 
could  have  been  no  question  that  the  sale 
would  have  l)cen  coni|)lete,  notwithstand- 
ing the  bricks  were  to  be  afterwards 
counted.  The  fieneral  princi|)lo  is,  that 
when  an  operation  of  weight,  measure- 
ment, counting  or  the  like,  remains  to  lie 
Iierformed  in  order  to  ascertain  the  price, 
the  quantity  or  the  particular  conimodit.v 
to  be  delivernd,  and  to  put  it  in  a  deliver- 
able state,  the  contract  is  incornplcte,  un- 
til such  operation  is  performed.  (Ilrown 
on  Sales,  -14.)  Hut  where  the  goods  or 
coniiuodities  are  actuall.v  delivered,  that 
shows  the  intent  of  the  parties  to  com- 
plete the  sale  b.v  the  delivery,  and  the 
weixhins,  or  measurinp;  or  couutiuK  after- 
wards would  not  be  considered  as  iiny 
part  of  the  contract  of  sale,  but  would  be 
taken  to  refer  to  the  udjustmenr  of  the 
liaul  settleiriCnt  as  to  the  price.  The  sale 
woulil  be  as  ct)mplete  as  a  sale  upon 
credit  l)ef(ire  the  actual  payment  of  the 
l)rice.  .N'othiiijj  can  be  found  in  any  of 
the  numerous  cases  on  this  point,  which 
militates  a^iainst  this  j)osition." 

The  remaiks  of  the  same  court  in  Kiddle 
V.  Varnum,  (20  I'ick.  2s:J-i,)  to  whic-h  we 
have  been  referred  by  the  counsel  for  the 
respoudeiitH  are  not  intemled  to  conflict 
with  what  hail  been  previously  determined, 
but  expressly  allirin  that  decision. 

It  is  true  the  court  say  that  "the   party 


aflirminK  the  sale  must  sntlMfy  the  jury 
that  it  was  intended  to  be  an  absolute 
transfer,  and  all  that  remained  to  be  done 
was  merely  for  the  purpose  of  ascerlain- 
lUK  the  price-  of  the  articles  sold  at  the 
sjleaKreed  upon."  .\nd  of  this  there  can 
lie  no  doubt,  l)ut  yet  th<i  t  is  a  not  tier  for 
(he  jury,  and  it  is  not  intiinateil  in  this 
case  that  when  there  is  an  actual  delivery, 
the  jury  cannot  lie  alloweil  to  Infer  such 
Intention  without  some  additional  evi- 
dence. 

These  questions  Renerally  arise  when 
the  thin;;  Hold  has  perisheil,  and  the  con- 
test is  uiion  whom  the  loss  shall  fall,  and 
it  may  not  be  improper  here  to  rem-irk 
that,  not withstandiiiK  the  marked  differ- 
ence between  a  Itoman  and  common  law 
sale,  in  other  [larticulars,  when  a  loss  oc- 
curs, it  falls  upon  the  same  person  uniler 
either  system.  I'nij?r  our  law,  the  maxim 
is  that  the  owner  liears  the  loss,  a  rule.  It 
would  seem,  of  universal  a|iplira(ion,  res 
lierit  domitio.  Pad'-r  the  Koman  law,  the 
debtor  of  a  speciHc  tliiim  was  not  answer- 
able for  its  loss,  when  it  iierished  In  his 
han<lH  without  fault,  and  when  there  had 
been  a  purchase  of  a  specillc  commodity, 
ulthouixh  the  [)roperty  was  not  clianued 
U[itil  delivery,  the  seller,  by  the  bargnln, 
became  (lel)tor  to  the  b'lyer  of  the  partic- 
ular thing  liought.  ami  st)  not  liable  if  it 
perished  without  fault. 

We  repeat  what  we  have  liefore  said.  It 
is  a  question  for  the  jury.  If  the  delivery 
were  tor  the  purpoi;e  of  passing  the  prop- 
erty, it  had  that  effect  although  the  price 
was  t<i  be  afterwards  iiscertained  and 
paid  according  to  net  weight,  and  there  is 
no  rule  of  law  that,  under  such  circum- 
stances, the  presumption  arising  from  the 
delivery  is  met  and  repdied.  and  that 
other  evidence  becomes  necessary  in  or- 
der to  make  out  a  pritna  facie  case  of  n 
present  sale.  The  seller  has  a  right,  not- 
withstanding the  bargain,  to  retain  his 
property  till  he  is  paiil,  unless  lie  ngrtH's 
to  allovv  the  p'Tchaser  a  credit  (the  bar- 
gain fiir  an  immediate  transfer  of  prop- 
erty implying  a  present  payment  of  the 
price,)  anil  hence,  when  there  Is  no  under- 
standing as  to  the  time  of  payment  other 
than  wliat  is  implieil  In  the  postponement 
of  it  until  the  i)nanlity  of  the  thing  sold  is 
a.scertained  in  the  manner  Indicated  In  the 
contract,  this  circumstance  is  certainly  en- 
titled to  consideration  with  the  jury,  in 
determining  the  character  of  the  delivery, 
which,  if  Inteaded  to  pass  the  thing  in 
property,  deprives  the  seller  i>t  his  security 
upon  it  for  the  price. at  Ihesametlme  that 
it  throws  upon  the  buyer  the  future  risk. 
The  judgment  is  reversed,  and  the  cause 
remanded. 


CUSACK  V.  ROBIXSON. 


221 


CL'SACK  et  al.  v.  ROKINSON. 

(1  Best  &  S.  LfJO.) 

(Jihcirs  Hciicli,   Trinity  Tcriii.     May   2.".,    ISf.l. 

Dpcliirallon  tnr  Koods  Bold  anil  dcliv- 
t'ri'd.atid  Koodx  liiirKulnccI  uiidKuld.  I'lea, 
never  indebted.  At  the  trial  before  lilack- 
biirii.  J., at  the  Liverpool  win ler  uHHizeM  in 
iNOd,  it  appeared  that  the  defendant,  who 
was  a  London  merchant,  on  the  LMth  Oc- 
tolier.  IMIO,  at  Liverpool  called  on  the 
plaintiffs,  who  are  importers  of  Canadian 
prodnee.  and  Haid  he  wanted  to  liuy  from 
150  to  I'Ul)  111  UiiiH  of  Canadian  hatter.  He 
then  went  with  one  of  the  plaintiffs  to 
their  cellar,  where  he  was  Rliewn  n  lot  of 
I'll!  (irkins  of  butter,  "e.\  liidieniian, "  lie- 
loPKin^  to  the  plaintiffs,  which  he  then 
had  the  opportnnity  of  inspecting,  and  in 
fMic  he  did  open  and  inspect  six  of  the  fir- 
kins in  that  lot.  After  that  e.samination, 
thi'.v  went  to  another  cell;ir  to  see  other 
liutter,  which  however  ilid  not  salt  the 
defendant.  At  a  later  period  of  the  same 
(lay  (he  plaintiffs  and  the  defendant  made 
a  verbal  agreement  by  which  the  defend- 
ant agreed  to  biiv  that  K|)ecilic  lot  of  !.")(; 
firkins  at  77s.  per  cwt.  When  the  jirice 
had  been  agreed  on.  the  defeniljint  took  a 
card  o!i  which  Ids  name  and  aildress  in 
London  were  written,  "Mdnnind  Itnbin- 
Hon,  1  Welliimton  Street.  London  I'.ridKe, 
London,"  and  wrote  on  it "  l.'iCilirkins  but- 
ter to  be  delivered  at  Kenninjt's  Wharf, 
Tooley  Street."  He  nave  this  to  the  plain- 
tiffs, and  at  tlie  same  time  saiil  that  Ids 
asents  Messrs.  Clihborn,  at  Liverpool, 
woidd  Kive  directions  how  the  couds  were 
to  be  forwarded  to  Kenninjj's  Wharf.  The 
])laintiffs  by  Cliliborn's  directions  deliv- 
ered the  l)iitter  to  Pickford"ri  carts  to  be 
forwarded  to  the  ilofendant  at  Fenninu's 
Wharf.  The  plaintiffs  sent  an  invoice 
dated  the  -.'.jth  October,  IscO,  to  the  ad- 
dress on  the  defendant's  card.  They  re- 
ceived in  answer  a  letter  purporliny;  to 
come  from  a  clerk  in  the  defend  an  fsotlice, 
acknowledKiUK  the  leceipt  of  the  invoice, 
and  statiiiK  that  on  tliedeiendant's  relnrn 
he  would  no  doubt  attend  to  it.  There 
was  no  evidence  that  the  writerof  this  let- 
ter had  any  authority  to  sisii  a  memoran- 
dum of  a  contract.  On  the".'7th  October  the 
plaintiffs  in  J>iverpo(d  received  a  telejiram 
Irom  the  defendant  in  London,  in  effect 
assert  ins  that  the  butters  had  lieen  sold 
b.v  the  plaintiffs  subject  to  a  warrant.v 
that  was  equal  to  a  sample,  but  that  they 
were  not  ei|ual  to  sample,  and  therefore 
would  be  returned.  The  plaintiffs  replied 
b.v  telegram  that  there  was  no  such  war- 
ranty, and  they  must  be  kept.  \  clerk 
at  FenninH:'s  Wharf  ))roved  that  .Messrs. 
Fenninsfs  stnreil  noods  for  their  custom- 
ers, and  had  a  but  ter  warehouse  :  that  the 
•  lefeuilant  hn<l  used  the  warehouse  for  fif- 
teen .years,  and  was  in  the  habit  of  keepini; 
his  butters  there  till  hes.dil  them.  On  the 
L'tUh  Oct(d)er  I'ickford  A:  Co.  had  delivered 
a  part  of  the  l.'iC  lirkins  in  (luestion  at  the 
warelutuse,  and  delivered  tlie  residue  on 
the  morninu  of  the  l^th  October.  The 
witness  could  not  say  whether  an.v  one 
eaine  to  inspect  them  or  not.  but  he  proved 
that  they  were  delivered  up  by  Kenidng  to 
I'icUford  iV-  Co.  under  a  delivery  orderlioiu 


I  the  defendant  dated  l.'7th  October.  Th* 
1  defendant's  counsel  ailndtted  that  it  iniiHt 
I  be  taken  that  the  sale  was  not  subject  to 
any  warranty;  liut  ol.j(cted  that  the 
j  price  of  tlie  Koods  exceeded  £10.  nnil  that 
I  there    was   nothiiiu   proved  to  satisfy  the 

■  reiiuisitions  of  the  statute  of  frauds.     The 

■  verdict  was  entered  tor  the  plaintlfTs  for 
t:4-J0  Ids.  Id.,  with  leave  to  the  defendant 
to  move  to  enter  a  nonsuit.  It  tin  re  was  no 
evidence  proper  to  be  lett  to  the  jurv  either 
of  a  memorandum  of  the  contract  or  of  an 
ueceptanee  and  actual  receipt  of  the 
goods. 

I      In  Hilary  term.  IstJl,  Kdward  James  ob- 
'  tallied   a   rule    nisi.      Mellish    and    Cjunin 

shewed  cause.     Mil  ward,  in  support  of  the 

rule. 

BLACK BFRN,  J.  (After  fully  stntlnj: 
tlie  facts  Ills  lordship  proceeded.)  It  was 
not  contended  that  there  was  any  sulli- 
cieiiL  memorandum  in  writiuK  in  the  pres- 
ent case;  but  it  was  conteiideil  tliat  there 
was  sulRcient  evidence  Hint  the  defendant 
had  accepted  the  woods  sold  and  actually 
received  the  same;  and  on  cousiderution 
we  ;ire  of  that  opinion. 

The  words  of  the  statute  are  express 
that  tliere  must  be  an  acceptance  of  Hie 
{foods  or  part  of  them,  as  well  as  an  actu- 
al receipt;  and  the  authorities  are  ver,- 
nuiuerous  to  shew  tlin  t  both  these  reigui- 
sites  must  e.\ist.  or  else  the  stntiito  Is  not 
satisfied.  In  the  recent  case  <if  Mcholsoii 
V.  liower.i  wlii.-h  was  cited  lor  the  de- 
fendant. 141  (|uarters  of  wheat  were  sent 
b.v  a  railway,  addressed  to  the  vendees, 
'i'hcy  arrived  at  thi-ir  destination,  and 
were  there  wan-housed  by  the  railway 
eompan.v  under  circumstances  that  initflit 
have  lieen  held  to  put  an  end  to  tlie  un- 
paid venilor's  riirhts.  I'.ut  the  contract 
was  not  orijrinally  a  sale  ofspecillc  wheat, 
and  the  vendees  had  never  agreed  to  take 
those  particulari|uartersof  wheat:  on  the 
coiitrnr.v  it  was  shewn  to  lie  usual,  before 
acce|)tiiiK  wheat  thus  warehoused,  to 
compare  a  sample  of  the  wheat  »vith  tlie 
sample  by  which  it  was  sidd  ,  and  it  ap- 
peared that  the  venilees,  knowini;  tliat 
they  were  ill  embarrassed  circuiiistances. 
purposel.v  abstained  from  acceptiim  the 
goods;  and  eacli  of  the  judges  mentions 
th'it  fact  us  the  ground  of  their  decision. 
In  .Meredith  v.  .Meigli-  the  uoods,  which 
were  not  specilied  in  tlieori;;iiial  c<iiitract, 
had  been  selected  by  the  viMidor  ami  put 
on  lioard  ship  by  the  directions  of  the  ven- 
dee, so  that  they  were  in  the  hands  of  a 
carrier  to  convey  them  from  the  vendor 
to  the  veiiilee  it  was  there  held,  in  con- 
formii.v  with  Hanson  v.  .Vrmitage,-'  that 
the  carrier,  th-iiiirh  named  by  the  vondeo, 
hail  no  ;iuthority  to  accept  the  soods. 
.\iid  in  this  we  (julte  aiiree;  for  though 
(he  selection  of  the  i;oods  by  the  viMidor. 
anil  putting  them  in  transit,  would  but 
for  the  statute  have  been  a  siitllcient  deliv- 
ery (o  vest  the  property  in  the  vendiH>.  it 
coulil  not  be  said  that  (lie  selection  by  the 
vendor,  or  the  receipt  by  the  carrier,  was 

'1  E.  &  E.  172. 

"2  E.  &  B.  au. 

'5  B.  &  Al.l.  5o7, 


222 


CUSACK  V.  ROBINSOX. 


fln  aecei)tance  oi  those  particular  goofls 
hy  tlip  vendee. 

In  BaUloy  v.  Parker,*  which  was  inucii 
relied  on  i).v  Mr.  Milward  in  arf;iiing  in 
support  of  this  rule,  the  sround  of  the  de- 
cision was  that  pointed  out  l).v  Holroyd, 
J.,  who  says  (p.  44):  "Upon  a  sale  of 
specific  goods  for  a  specific  price.  Iiy  part- 
ing with  the  possession  the  seller  parts 
witli  his  lien.  The  statute  contemplates 
such  a  parting  with  the  pussession  ;  and 
therefore  as  long  as  the  seller  preserves 
his  control  over  the  goods  so  as  to  retain 
his  lien,  he  prevents  the  venilee  from  ac- 
cepting and  reieiving  them  as  his  own 
within  the  meaning  of  the  statute."  The 
principle  here  laid  down  is,  that  there  can- 
not be  an  actual  receipt  by  the  vendee  so 
long  as  the  goods  continue  in  the  posses- 
sion of  the  seller  as  nii])aid  vendor  so  as 
to  preserve  his  lien  ;  and  it  has  been  re- 
peatedly recognized.  But  though  the 
goods  remain  in  the  personal  possession 
of  the  vendor,  yet  if  it  is  agreed  between 
the  vendor  and  the  vendee  thattheposses- 
sion  shall  thenceforth  l)e  kept,  not  as  ven- 
dor, but  as  bailee  for  the  purchaser,  the 
right  of  lien  is  gone,  and  then  there  is  a 
sufficient  receipt  to  satisfy  the  statute. 
Marvin  v.  Wallis.s  Beaumont  v.  Bren- 
geri.B  In  both  of  these  cases  the  specific 
chattel  sold  was  ascertained,  and  there 
appear  to  have  been  acts  indicating  ac- 
ceptance subsequent  to  tlie  agreement 
which  changed  the  nature  of  the  posses- 
sion. 

In  the  present  case  there  was  ample  evi- 
<lence  that  the  goods  when  placed  in  Fen- 
ning's  Wharf  were  put  n])der  the  control 
of  the  defendant  to  await  his  further  di- 
rections, so  MS  to  put  an  end  to  any  right 
of  the  plaintiffs  as  utipnid  vendors,  as 
much  as  the  change  in  the  nature  of  the 
possession  did  in  the  cases  cited.  There 
was  also  sufficient  evidence  that  the  de- 
fendant had  at  Liverpool  selected  these 
specific  15(i  firkins  of  butter  as  those  which 
he  then  agreed  to  take  as  his  property  as 
the  goods  sold,  and  that  he  directed  those 
specific  firkins  to  be  sent  to  London.  This 
was  certainly  evidence  of  an  accejitance  ; 
and  the  onl.v  remainingquestiou  is,  wheth- 
er it  is  necessary  that  the  acceptance 
should  follow  or  be  contemporaneous 
with  the  receipt,  or  whether  an  acceptance 
before  the  receipt  is  not  sufficient.  In 
Saunders  v.  Topp,''  whi(di  is  the  case  in 
which  the  facts  approach  nearest  to  the 
present  case,  the  defendant  bad,  accord- 
ing to  the   finding  of  the  jury,  agreed   to 


'  2  B.  &  C.  37. 
>  6  E.  &  B.  726. 
"5  C.  B.  301. 
'4  Exch.  390. 


buy  from  the  plaintiff  forty-five  couple 
of  sheep,  which  the  defendant,  the  pur- 
chaser, had  himself  selected,  and  tlie  plain- 
tiff had  by  his  directions  put  them  in  the 
defendiinl's  field.  Had  the  case  stopped 
there,  it  would  have  been  identical  with 
the  piesent.  But  there  was  in  addition 
some  evidence  that  the  defendant,  after 
seeing  them  in  the  field,  counted  them, 
and  said  it  was  all  light ;  and  as  this  was 
some  evidence  of  an  acceptance  after  the 
receipt,  it  became  unnecessary  to  decide 
whether  the  acceptance  under  the  statute 
must  follow  the  delivery,  Parke,  B.,  from 
the  report  of  his  observations  during  the 
argument,  seems  to  have  attached  much 
im[)ortance  to  the  selection  of  particular 
sheep  by  the  defendant;  but  in  his  judg- 
ment he  abstains  from  deciding  i>n  that 
ground,  though  certainly  not  expressing 
any  opinion  that  the  acceptance  must  be 
subseiinent  to  the  delivery.  The  other 
thri'c  barons — .\lderson,  Rolfe,  and  Piatt — 
express  an  inclination  of  opinion  that  it  is 
necessary  under  the  statute  that  the'ac- 
cfptance  should  be  subsequent  to  or  con- 
temporaneous with  the  receipt;  but  they 
expressly  abstain  from  deciding  on  that 
ground.  In  the  elabijrate  judgment  of 
Lord  Campbell  in  Morton  v.  Tibbett,^  in 
which  the  nature  of  an  accejitjince  and 
actual  receipt  sufficient  t<j  satisfy  the 
statute  is  fully  expcunded,  he  says  (p.  434) : 
"The  acceptance  is  to  be  something  which 
is  to  precede  or  at  any  rate  to  be  conteni- 
I)oraneous  with  the  actual  receipt  of  the 
goods,  and  is  not  to  be  a  subsequent  act 
after  the  goods  have  been  actually  re- 
ceived, weighed,  measured,  or  examined. 
The  intention  of  the  legislature  seems  to 
have  been  that  the  contract  should  not  be 
good  unless  partially  executed;  and  it  is 
partially  executed  if,  after  the  vendee  has 
finally  agreed  on  the  sjjecific  articles  which 
he  is  to  take  under  the  contract,  the  ven- 
dor by  the  vendee's  directions  parts  with 
the  possession,  and  puts  them  under  the 
control  of  the  vendee,  so  as  to  put  a  com- 
plete end  to  all  the  rights  r)f  the  unpaid 
vendor  as  such.  VA'e  think  therefore  that 
there  is  nothing  in  the  nature  of  the  en- 
actment to  imply  an  intention,  which  the 
legislature  has  certainly  not  in  terms  ex- 
pres.sed,  that  an  acceptance  prior  to  the 
receipt  will  not  suffice.  There  is  no  deci- 
sion putting  this  construction  on  the 
statute,  and  we  do  not  think  we  ought  so 
to  construe  it. 

We  are  therefore  of  opinion  that  there 
was  evidence  in  this  case  to  satisfy  the 
statute,  and  that  the  rule  must  be  dis- 
charged. 

Rule  discharged. 


'  15  Q.  B.  428. 


GUSHING  V.  BKEED. 


225^ 


GUSHING  et  al.  v.  BREED  et  al. 

(14  Allen,  37G.) 

Supreme  Judicial  Court  of  Massachusetts. 
Jan.  Term.  1807. 

Contract  to  recover  the  prlceof  SOObuah- 
eJHofontH  Rold  and  delivered.  The  nn- 
Hwer  admitted  the  sale  and  delivery  of  10.5 
Inisliels,  and  offered  judKinent  for  the  price 
thereof,  and  denied  the  residue.  It  ap- 
))t'ared  that  the  i)laintiff8  wereownerH  of  n 
car^o  of  oatH,  wliien.  on  being  vvei;;hed. 
was  found  to  contain  G,OU.J  bushels,  and 
was  stored  in  the  Merchants'  (Jrain  Kle- 
vntor  in  lioston,  which  belonged  to  per- 
sons whose  business  it  was  to  receive, 
elevate,  store,  weiuli,  and  deliver  K''ai>i- 
The  plaintiffs  thereafter  agreed  to  sell  to 
the  defendants  .")00  bushels  thereof,  and  de- 
livered to  them  the  following  order  upon 
the  i)roprietor8  of  the  elevator,  dated 
June  2;i,  lMi4:  "  I'lease  deliver  Breed  & 
Co..  or  order,  .'lOO  bushels  of  black  oats 
from  cariro,  per  schooner  Seven  Brothers, 
storage  commencing,  to  the  person  or 
persons  in  whose  favour  this  order  is 
drawn,  .Inne  L".),  1SG4."  This  order  was 
l)rcsented  on  J nne  U'5,  1><(')-}.  and  accepted 
in  the  usual  manner.  'I'he  order  was  en- 
tei-ed  in  the  booUs.  and  on  the  same  day 
10.')  bushels  of  the  oats  were  delivered  to 
defendants,  and  before  ,Iuly  a.  lS(i4,  the 
whole  cargo  had  been  sold  and  delivered 
(in<l  removed  from  the  elevator,  except 
1,L'74  bushels,  w!)icli  included  the  30.")  bush- 
els agreed  to  be  sold  to  the  defendants. 
On  tiie  .")tli  of  July  a  lire  occurred,  which 
rendered  the  oats  which  remained  in  the 
elevator  nearly  worthless.  It  was  the 
general  usage  of  dealers  in  grain  in  Bos- 
ton to  ()lace  large  ijuantities  of  grain  in 
elevators,  where  the  same  remained  until 
sold,  by  orders  given  to  the  purchaser, 
and  after  such  sale  it  was  removed  from 
the  elevator  or  kept  therein,  at  the  elec- 
tion of  the  purchaser,  .\lter  the  accept- 
ance of  such  order  by  the  proprietors  of 
the  elevator,  the  grain  covered  thereby 
was  treated  by  them  as  tho  i)roperty  of 
the  puchaser;  the  vendor  had  no  further 
control  over  it,  but  the  proprietors  held 
the  same  subject  to  th^- order  of  the  i)ur- 
chnser.  received  orders  from  him  in  the 
same  manner  as  fioni  the  original  vendor, 
or  weigheil  it  out  to  him  as  he  required, 
they  guaranteeing  to  ileliver  out  the  full 
number  of  bushels  weighed  into  the  ele- 
vator, charging  him  with  storage.  Differ- 
ent cargoes  of  the  same  (juality,  belong- 
ing to  different  owners,  were  sometimes 
mingled  in  the  bins,  (.rain  so  bought  was 
paiil  for  without  regard  to  whether  or 
not  it  had  been  separated  and  removed 
from  the  elevator,  and  all  damage  to 
grain  so  sold,  from  internal  causes  occur- 
ring after  the  delivery  of  the  order,  was 
borne  by  the  purchaser.  All  the  aliove 
usages  were  known  to  the  defendants,  but 
they  objected  to  the  evidence  to  prove  the 
same.  The  judge  ruled  that  there  was  no 
such  change  of  title  to  the  grain,  except 
as  to  the  10.")  bushels  actually  renioveil 
by  the  defendants  from  the  elevator,  .-is  to 
make  the  defendants  liable,  and  fouml 
that  the  plaintiffs  were  only  entitled  to  re- 
cover the  price  agreed  for  the  10.">  bushels, 
i..\\v  .s.\i.i-:d — 15 


with  interest.    The  plalDtlffs  alleged  ex- 
ceptions. 

W.  Gaston  and  W.  A.  Field,  for  plain- 
tiffs. C.  B.  Goodrich  and  I.  J.  Austin,  for 
defendants. 

CHAPMAN,  J.  The  use  of  elevators  for 
the  storage  of  grain  has  introduced  some 
now  methods  of  dealing,  but  the  rights  of 
parties  who  adopt  these  methods  must  be 
determined  by  the  principles  of  the  com- 
mon law.  The  proprietors  of  the  ele- 
vator are  the  agents  of  the  various  par- 
ties for  whom  they  act.  When  several 
parties  have  stored  various  parcels  of 
grain  in  the  elevator,  and  it  is  put  into 
one  mass,  according  to  a  usage  to  which 
they  must  be  deemed  to  have  assented, 
they  are  tenants  in  common  of  the  grain. 
j  Each  is  entitled  to  such  a  proportion  ai* 
the  (|uantity  placed  there  by  him  bears  to 
I  the  whole  mass.  When  one  of  them  hcIIh 
a  certain  number  of  bushels,  it  is  a  sale  of 
property  owned  by  him  in  common.  It 
is  not  necessary  to  take  it  away  in  order 
to  complete  the  purchase.  If  the  ven<lor 
gives  an  order  on  the  agents  to  deliver 
it  to  the  vendee,  and  the  agents  accept 
the  order,  and  agree  with  the  vendei'  to 
store  the  property  for  him.  and  give  him  a 
I  receipt  therefor,  the  delivery  is  thereby 
'complete,  and  the  projierty  belongs  to  the 
I  ■vendee.  The  venilor  has  nothing  more 
to  do  to  complete  the  sale,  nor  has  he  any 
I  further  dominion  over  the  property.  The 
I  agent  holds  it  as  the  property  of  the  ven- 
I  dee,  owned  by  him  in  common  witli  the 
[Other  grain  in  the  elevator.  It  Is  elemen- 
tary law  that  a  te'uint  in  common  of  per- 
sonal property  in  the  hands  of  an  agent 
may  sell  the  whole  or  any  part  of  his  inter- 
est in  the  property  by  the  method  alpovc 
stated,  or  by  any  other  niethoil  equivalent 
toit.  Actual  separation  and  tnkingnwny 
are  not  necessary  to  (M)mplete  the  sale. 
As  to  tlie  property  sold,  the  agent  acts  for 
a  new  principal,  and  holds  his  |)roperty 
for  him.  Tlie  law  is  the  same,  whether 
the  proprietors  are  numerous  or  the  ven- 
dor and  vendee  are  owners  of  the  whole. 
If  the  vendee  resells  the  whole  or  a  part  of 
what  he  has  purchased,  his  venilee  may, 
by  the  same  course  of  dealing,  become  also 
a  tenant  in  common  as  to  the  part  which 
he  has  bought. 

I      This  is  not   like    the  class  of  sales  where 
the  vendor  retains  the  possession.  li.fauBP 
there  is  somethini;  further  for    him  to   do. 
'  such  as  measuring,  or  weighing,  or  mark- 
ing, as  in  Scudder  v. Worcester.  II  CuMb.-l'S: 
1  nor  like  the  ca.se  of  Weld  v.  Cutler.  2  tJray. 
VX>,  where  the  whole  of  a  pile  o:  coal  wnt# 
delivered  to  the  vendee   in    onler   that    he 
might    make    the    separation.      But     the 
property  is  in  the  hands  of  an  agent:  and 
,  the  same  person  who  was  the  agent  of  the 
i  vendor  to  keep,  becomes  the  agent  o(    the 
vendee  to  keep:  and    the  possession  of  the 
'  agent  be<on;es  the  possession  of    the  prin- 
cipal.    Hatch  V.  Bayley,  12  Cush.  27.   and 
cases  cited.     The   tenancy  In   common    re- 
!  suits  from   the    method    of  storage  which 
has  been  agrec.l  upon,  and   supersedes  the 
necessity  of   measuring,  weighing,  or  sep- 
aratingthe  part  sold. 
No  delivery  Is   necessary  to  a  tenant  la 


226 


CnSIIING   0.  BHKKD. 


common.    Beaumont  v.  Crane,   14   Mass. 
400. 

Upon  these  principles,  the  plaiiitiff.s  are 
entitled  to  recover  the  amount  dne  them 
ior  the  property  thus  sold   and   delivered 


to     the    defendants.      The   damage   occa- 
sioned   to   tlii.s   property  hy  the   fire  must 
he  borne  Ity  tlie   defendants,  as   owners  of 
the  proi)erty. 
Exceptions  sustained. 


I 


DAVIS  V.  RUSSELL. 


229 


DAVIS  V.  RUSSELL  et  al. 
(52  Cal.  Gil.) 

Snnii'Mio  ('ourt   of   (California.    .Tan.   Term, 

1S7S. 

B.vcra  &  Elliot  and  Hewpll  &  Turner, 
for  iippolluiits.  Terry,  MoKinne  &  Terry, 
IJiidil  \-  Suu,  ami  F.  T.  lialdwin,  for  re- 
n[> lent. 

l!Y  THE  COl'I'.T.  Davi.s  Ix'inR  the 
owner  of  a  lot  of  wheat,  deposited  it  in 
the  warehouse  of  Kiisseli,  tool;  a  ware- 
iiouse  receipt  for  it  in  the  nsuul  form. 
an<l  tliereafter  indorsed  the  same  in  blank 
and  delivered  it  to  liarney.  Barney  trans- 
ferred the  receipt  to  the  Bank  ot  Stockton, 
and  the  hank  transferred  it  to  a  i)erHon 
not  a  party  to  the  action,  and  the  wheat 
was  afterward  delivered  liy  Knwsell  to  the 
licdder  of  the  receipt.  Tlie  hank  was  noti- 
lied  hy  Davis  that  he  had  not  sold  the 
wheat  to  Barney,  luit  the  witnesses  do 
not  aurce  whether  the  notice  was  l)ef<>re 
or  after  the  hank  transferred  the  receipt. 
Before  the  wheat  was  delivered  to  the 
Irolder  of  the  warehouse  receipt,  Davis 
ina<le  a  demand  upon  KtiRsell  for  a  deliv- 
ery of  the  wlieat,  hut  Russell  refuseil  ho  to 
<!o  unless  the  receipt  was  returned  to  him. 
Davis  claims  tliat  Barney  was  only  his 
a;ient  for  the  sale  of  the  wheat,  and  that 
he — Barnej' — transferred  the  receipt  to  the 
bank  as  security  for  an  antecedent  debt 
due  from  him  to  tlie  bank.  The  <lefend- 
ants  claim  tliat  Barney  purchased  the 
wheat  from  Davis,  tliat  iie  transferred  the 
receipt  to  the  bank  not  only  as  security 
for  an  antecedent  debt,  but  also  for  fur- 
ther advances,  which  were  afterward 
made,  and  that  the  transfer  hy  the  bank 
was  prior  to  the  time  wlien  it  was  notified 
tliat  Davis  had  not  sold  tlie  wheat  to 
Barne.v. 

The  jury  found  for  the  plaintiff. 

The  court  was  recinested  by  the  defend- 
ants to  Kive  the  foUowinjr  instruction: 
"The  possession  of  theinstrumeut  in  writ- 
ins;  produced  in  evidence,  dated  Aujjust 
iNtli,  INT."),  and  called  n  warehouse  receipt, 
coverint;  this  wheat  in  controversy,  to- 
jsether  with  the  plaintiff's  indorsement 
thereon,  is  of  itself  iiresumptive  evidence 
of  tlie  ownership  of  the  grain,  l>y  the  per- 
son liaviiist  such  possession  of  such  receipt 
so  indoised;"  liut  the  court  refused  to 
(jive  the  instruction,  and  cave  the  follow- 
ing instructions  at  the  plaintiff's  re<)uest: 
"  li  the  jury  believe  from  the  evidence  that 
the  plaintiff  did  not  sell  tlie  wheat  in  con- 
troversy to  liarney,  but  nuthorized  him 
to  sell  the  same  at  a  fixed  price  for  cash, 
to  be  paid  on  or  before  delixery,  then  the 
Indorsement  and  delivery  of  the  warehouse 
receipt  did  not  vest  Barney  with  the  title 
of  said  property,  or  cleprive  plaintiff  of  his 
title  and  riH;ht  to  the  jiossession  of  the 
wheal;"  also,  that  "the  Instrument  in 
writiiiK  called  a  warehouse  receipt  is  not 
a  contract  for  the  payment  of  money  or 
personal  property,  and  cannot  be  trans- 
ferred by  indorsement,  like  a  necotiahle 
promissory  note."  Other  instructions 
were  civen  embodying  the  same  legal  prop- 
OHltii)n.    There  was  evidence  Introduced 


by  the  defendnnts  tending  to  nhow  that 
Barney  had  purchased  the  wheat  from  the 
plaintiff,  and  that  the  warehouse  re<-elpt, 
indorsed  in  Idank  by  the  |)lalntiff,  had 
been  transferred  to  the  Bank  of  Stockton, 
and  by  the  hunk  transferred  to  a  pei-son 
not  a  party  to  the  action,  before  the  bank 
was  notified  by  llm  plaintiff  that  he  had 
not  sold  the  wheat  to  Barney;  and  the 
<lefendants  were  entitled  to  have  iiistrur- 
tions  given  to  the  jury  which  would  state 
the  effect  of  such  transfers  of  the  ware- 
house receipt. 

The  foregoing  Instruction,  requested  by 
the  defendants,  expresses  very  fairly  tin- 
law  in  that  regard.  It  was  held  In  many 
cases  in  the  English  courts  that  an  assign- 
ment of  su^ha  receipt  does  not  amount  to 
a  constructive  delivery  of  the  goods  until 
the  warehouseman  is  notified  Ihereol,  and 
agrees  to  hold  the  goods  for  the  ossignee. 
(Benjamin  on  Sales,  sec.  M.'i.  I  No  sub- 
stantial reason  is  offered  for  giving  to  the 
assignment  of  such  an  instrument  an  effect 
differing  materially  from  that  of  an  assign- 
ment of  a  bill  of  lading.  In  Ilorr  v.  Barker, 
(SCnl.  013)  a  warehouse  receipt  was  re- 
garded as  standing  on  the  same  footing 
as  a  bill  of  lading;  and  it  was  held  that 
a  transfer  of  sucli  receipt  opiTnted  as  a 
transfer  of  the  title  to  the  g.iods.  The 
doctrine  of  that  case  has  not  been  ques- 
tioned, so  far  as  we  are  aware,  li.v  the 
courts  of  this  state.  If  an  nssiguinent  of 
the  receipt  will  transfer  the  title  to  the 
goods,  it  must  necessarily  follow  that  the 
liossession  of  the  receipt.  Indorsed  in 
blank,  is  presumptive  evidence  of  the  own- 
ershi|)  of  the  goods  by  the  holder  of  the 
receipt.  The  defendants  were  entitlecl  to 
an  instruction  which  would  give  them 
the  benefit  of  that  presumptive  evidence; 
although,  as  between  the  plaintiff  and 
Barney,  and  thosedaiming  \iiider  Barney, 
with  notice  that  he  was  only  Hie  agent  of 
plaintiff,  (if  such  was  the  fact)  the  plain- 
tiff remained  the  owner  of  the  wheat. 

The  court  also  instructed  the  jury  that 
"if  you  believe  from  all  the?vi(ience  in  this 
case  that  Davis  did  sell  the  wheat  in  ques- 
tion to  Barney,  your  verdict  will  be  for 
the  defendants.  •  •  •  If,  however,  you 
find  that  there  was  no  sale  of  this  wheat, 
and  that  there  was  a  demand  and  lefusnl 
of  it  by  the  party,  then  it  is  your  duty  to 
find  a  Verdict  for  the  plaintiff  for  a  return 
of  the  wheat  or  its  value."  This  Instruc- 
tion entirely  Ignores  any  rights  which 
any  of  the  defendants  may  have  acquired, 
in  reliance  upon  thi>  aiipari'Ut  ownership 
or  authority  of  the  holder  of  the  ware- 
house receipt,  and  in  that  respwt  Is  erro- 
neous. It  is  provided  hy  the  Civil  Code, 
see.  L".*!!!,  that  "one  who  has  allowed  an- 
other to  assume  the  apparent  ownership 
of  property,  for  the  purpose  of  making 
anv  transfer  of  it.  cannot  setup  his  own 
title  to  defeat  a  pledge  of  the  property 
maile  by  the  other  to  a  pledgee  who  n-- 
ceived  the  property  In  good  faith,  in  the 
ordinary  course  of  business,  and  for 
value."  The  evidence  seems  to  leave  no 
room  for  doubt  that  the  Bank  of  Stockton 
received  the  warehouse  rereii>t  from 
Barney  In  gooil  faith,  and  In  the  ordinary 
course  of  business;  and  upon  the  author- 
ity of  Payne  v.  Bensley.  iS  Cal.  'XO)  Rohlo- 


230 


DAVIS  V.  RUSSELL. 


Hon  V.  Sniitli,  (14  Col.  94)  N'.i^^lec  v.  Ly- 
man, (14  Cal.  4o0)  and  Frey  v.  Clifford, 
(44  (;al.  S.'io)  it  raust  be  lield  that  the  pre- 
existins  debt  of  Barney  to  the  bank  con- 
Btitnted  a  valuable  consideration  within 
the  meaning  of  that  section.     If   the  evi- 


dence brings  tlie  case  within  that  section, 
neitlier  the  Bank  of  Stockton  nor  Russell 
would  be  liable  to  the  pluintiff  in  this  ac- 
tion. 

.ludnment and  order  rever.sed,  and  cause 
remanded  for  a  new  trial. 


DENNY  V.  WILLIAMS. 


233 


DEXXY  V.  WILLIAMS. 

(5  Allen.    1.) 

Supreme  Jiidif-ial   Court   of  >Ias.-<!irhusett8. 
Worcester.    Oct.  Term,  18C2. 

Contract  to  recover  the  price  of  about 
V'j.OUU  pouuds  of  wool.  The  declaration 
contained  six  counts,  three  of  which  net 
forth  an  executory  contract  for  tlie  pur- 
chase of  the  wool,  and  three  were  for 
wool  Hf)ld  and  delivered.  The  anwwer  Het 
up  in  defence,  amouKHt  other  thitiK'f,  the 
Htatute  of  fraudH.  At  the  trial  th°  plain- 
tiff proved  that  the  defen<lant  agreed  to 
purchase  the  wool  of  his  hrokers,  in  New 
York,  anil  introduced  in  r-viilence  the 
hrnUers'  note  uf  the  contract,  which  the 
jud^e  ruled  was  in.-:utlicii'nt  to  take  the 
caK(^  out  of  the  statute.  The  plaintiff 
then  introduced  evidence  to  show  a  de- 
livery and  acceptance  of  a  portion  of  the 
wool,  sutlicient  to  satisfy  the  statute. 
The  defendant  requested  the  court  to  rule 
that,  in  order  to  entitle  the  plaintiff  to  a 
verdict,  he  must  prove  that  there  had 
lieen  a  ilelivery  of  the  jiroperty  sold  to  the 
defendant,  and  an  acceptance  of  it  l>y 
him,  and  that  there  was  no  evidence  to 
warrant  the  jury  in  findin;i  either  a  deliv- 
ery or  an  acceptance.  He  also  contended 
that,  assuuiinic  the  testimony  offered  hy 
the  plaintiff  to  l)e  true,  the  case  ou^l't  to 
be  withdrawn  from  the  jury,  and  a  ver- 
dict directed  tor  the  defendant,  or  tlint  the 
jury  should  be  instructed  that  the  defend- 
ant wan  entitled  to  n  verdict,  on  the 
ground  that  the  evidence  was  not  sutH- 
cieut  to  prove  such  a  delivery  and  accept- 
ance of  the  wool,  or  any  i)art  thereof,  as 
to  make  him  responsible  upon  the  con- 
tract. 'I'hejudjre  jjave  the  jury  instruc- 
tions requii'iuK  them  to  find  a  delivery  and 
acceptance  of  a  portion  of  the  wool,  in 
order  to  warrant  them  in  ^ivin;;  a  verdi<'t 
for  the  plaintiff,  and  defining  what  would 
be  a  sulficient  delivery  and  acceptance  for 
this  purpose.  The  jury  returned  a  verdict 
for  tlie  plaintiff,  with  duiiiaKea  in  the  sum 
ol  ^l(),t):i'.).7I,  and  the  delendant  alleged  ex- 
ceptions. 

P.  C.  Bacon  &  F,  H.  Dewey,  for  plaintiff. 
I).  Foster.  (T.  L.  Nelson  with  him,)  for 
defendant. 

CHAP.MAN,  J.  The  rulinp;  of  the  judge, 
that  there  was  no  sufficient  nienuirandnra 
in  writing  of  the  contract,  made  it  neces- 
sary foi'  tlie  plaintiff  to  prove  either  an  e.\- 
ecuted  ouitract,  by  sale  and  delivery,  or  a 
delivery  and  acceptance  of  a  [lart  of  the 
property,  no  as  to  satisfy  the  statute  of 
frauds,  and  supply  the  lack  of  a  sullicient 
memoranduu). 

As  tlie  contract  was  made  in  the  city  of 
New  Vork,  and  was  to  be  performed 
there,  the  la ws  of  the  state  of  New  York 
must  govern  us  in  respect  to  its  construc- 
tion and  ()erformance.  In  Sliimller  v. 
Houston,  I  Coinst.  L'til.  the  court  of  ap- 
peals say  that,  to  constitute  a  delivery 
and  acceptance  of  goods,  such  as  ine  stat- 
ute of  frauds  rc'iuires,  s<»iiiething  more 
than  mere  words  is  necessary.  .Siiper- 
adde-J  to  the  language  of  the  contract, 
there   must    be  some   act    of    the    parties 


amounting  to  a  transfer  ol  the  posses- 
Bion.  and  an  acce[)lance  thereof  by  the 
buyer;  and  the  case  of  cunilirous  nrticlcH 
is  not  an  exceiition  to  this  rule.  The  case 
is  fully  discnsseil,  and  the  authorltifH  are 
cited,  irnder  our  statute.it  is  alKo  held 
that  the  acceptance  must  be  proved  by 
some  clear  anil  'ini.-quivocal  act.  Snow 
V.  Warner,  in  .Met.  l.H!.  Weighing  and 
measuring  are  not  always  necessary  tt> 
constitute  a  <lelivery  and  transfer  of 
property,  even  when  it  is  sold  by  weight 
or  measure;  but  in  cases  where  the  prop- 
erty to  be  sold  is  in  a  state  ready  for  ile- 
livery, and  the  payment  of  in(<ney  or  glv- 
intf  security  therefor  is  not  a  condition 
precedent  to  the  transfer,  it  may  well  be 
the  understanding  of  the  parties  that  the 
sale  is  [lerfccted  ;  and  the  interest  passes 
immediately  to  the  vendee,  although  the 
weight  or  measure  of  the  articles  sold  re- 
mains to  be  ascertained.  Such  a  case  pre- 
sents a  question  of  the  intention  of  the 
parties  to  the  contract.  IJidille  v.  Var- 
niirn,  L'O  Pick.  INO.  It  is  nls<j  settled  that 
a  contract  may  be  one  and  entire  In  Its 
origin,  and  yet.  looking  to  the  performance 
of  different  things  at  different  times.  It 
may  be  divisible  in  its  operation.  Knight 
V.  New  ICngland  Worsted  Co.,  'J  Cash.  1.7L 
If  the  performance  is  several,  and  the  con- 
tract divisible,  an  action  will  lie  on  each 
default.  Badger  v.  Titcoml).  1.'.  I'irk.  4ii!t. 
The  case  is  to  be  examined  in  the  IlKht  of 
these  principles. 

The  |)laintiff  offered  evidence  tending,  as 
he  contended,  to  [irove  a  delivery  and  ac- 
ceptance, sufficient  to  satisfy  the  statute. 
After  the  evidence  on  both  sides  was  Id, 
the  defenilnnt'scounsel  requested  thecourt 
to  rule  that  there  was  no  evidence  to  war- 
rant the  jury  in  finding  either  a  deliveri' 
or  an  acceptance.  The  court  declineil  to 
give  this  instruction,  but  left  it  to  the  jury 
to  decide,  under  instructions  that  ar« 
reported,  whether  there  were  a  ileliver.v 
and  acceptance  or  not.  The  exception  to 
this  ruling  brings  the  whole  evidence  he- 
fore  this  court;  and  the  principal  point 
argued  here  is,  whether  there  was  such 
evidence  as  ought  to  have  been  submitted 
to  the  jiirv. 

The  question  whether  the  jury  have 
found  a  verdict  for  the  plaintiff  aiiainst 
the  weight  of  thecvidence  is  not  before  us. 
That  (luestion  could  not  he  raised  In  any 
way  except  by  a  motion  for  a  new  trial.  If 
there  was  any  evidence  which  it  was 
proper  to  submit  to  a  jury,  the  judge 
was  right  in  submitting  it  to  them,  and 
the  exception  must  be  overruled.  It  Is 
only  in  a  very  limited  class  of  cases  lliat 
such  a  question  can  be  brought  to  this 
court  by  exceptions.  They  are  cases 
where  the  evidence  is  iiisullicimt  in  law  to 
support  a  verdict.  Commonwealth  v. 
Packard,  .')  Gray.  KlI.  Chase  v.  Breed,  lb. 
AW.  Conimonwenlth  v.  Merrill.  14  Gray, 
417.  Policy  V.  Lenox  Iron  Works.  4  Allen, 
:j-".t. 

In  such  cases,  a  refusal  of  the  judge  to 
instruct  the  jury  that  the  evi.lence  l«  In- 
sutnclent  is  a  good  ground  of  exception. 
It  is  not  necessary  that  there  sliouhl  be 
absolulelv  no  evidence.  The  rule,  as  stat- 
ed In  Browne  on  the  St.  of  I'rBuds.  c.  1."). 
§:!J1.  is  sustained  by  the  authorities  cited  : 


234 


DEXNV  V.  WILLIAMS. 


"Whether  tliere  has  lieen  a  fU'livery  and 
acceptance  sullkient  to  Katisfy  the  stat- 
ute of  frauds  Is  a  mixed  fiuestion  of  law 
and  fact.  But  it  is  for  the  court  to  with- 
hold the  facts  from  the  jury,  when  they 
are  not  such  as  can  afford  any  sronnd 
for  findiuK  an  acceptance;  and  this  in- 
cludes cases  where,  tliouf^h  the  court 
might  admit  that  there  was  a  scintilla  of 
evidence  tending  to  sliow  an  acceptance, 
they  would  still  feel  bound  to  set  aside  a 
verdict  finding  an  acceptance  upon  that 
evidence."  What  this  scintilla  is,  needs 
to  Restated  a  little  more  definitely  ;  other- 
wise it  may  be  understood  to  include  all 
cases  where,  on  a  motion  for  a  new  trial, 
a  verdict  would  be  set  aside,  as  against 
the  weight  of  the  evidence.  It  would  be 
impossible  to  draw  a  line  theoretically, 
because  evidence  in  its  very  nature  varies 
from  the  weakest  to  the  strongest,  by  im- 
perceptible degrees.  But  the  practical  line 
of  distinction  is,  that  if  the  evidence  is 
such  that  the  court  would  set  aside  any 
number  of  verdicts  rendered  upon  it,  to- 
ties  quoties,  then  the  cause  should  be 
taken  from  the  jury,  by  instructing  them 
to  find  a  verdict  for  the  defendant.  On 
the  other  liand,  if  the  evidence  is  such 
that,  though  one  or  tv\'o  verdicts  ren- 
dered upon  it  would  be  set  aside  on  mo- 
tion, yet  a  second  or  third  verdict  would 
be  suffered  to  stand,  the  cause  should  not 
be  taken  from  the  jury,  but  should  be  sub- 
mitted to  them  under  instructions.  This 
rule  throws  upon  the  court  a  duty  which 
may  sometimes  be  very  delicate;  but  it 
seems  to  be  the  only  practicable  rule  which 
the  nature  of  the  case  admits. 

It  appears  by  the  report  in  this  case, 
that  in  the  summer  of  IS.JT  the  plaintiff 
purchased  a  ()uantity  of  wool  at  Chicago, 
and  sent  it  at  various  times  to  Pettibone 
&  Co.  of  New  York,  wool  brokers,  whom 
he  had  made  his  agents  to  receive,  store, 
grade  and  prepare  it  for  sale,  and  also  to 
sell  it;  their  rates  of  compensation  being 
stipulated.  In  the  month  of  .August, 
after  two  hundred  and  eighty-one  bales 
of  the  wool  had  been  received,  and  about 
one  hundred  bales  which  had  been  pur- 
chased were  on  their  way  and  expected  to 
arrive,  the  defendant  called  on  Pettibone 
&  Co.,  and  made  some  examination  of  the 
wool  on  hand,  and  some  inquiries  about 
the  whole;  but  made  no  contract.  But, 
as  the  conversation  at  this  time  seems  to 
have  been  referred  to  subsequently  in  mak- 
ing tlie  bargain,  it  may  be  well  to  state  it, 
as  represented  in  the  twentj--fifth  answer 
of  Pettibone's  deposition.  Tliis  witness 
was  the  person  with  whom  the  plaintiff 
dealt.  He  says,  "Mr.  Williams  came  to 
our  place  in  New  York,  and  the  conversa- 
tion turned  on  the  subject  of  wool,  as 
usual,  to  my  best  recollection.  I  think  I 
told  him  I  had  a  lot  of  wool  to  sell,  as 
usual.  We  went  up  stairs  and  there  the 
wool  lay  opened.  My  impression  is,  he 
asked  me  what  I  asked  for  that  wool.  I 
answered  '  Fifty-two  and  a  half  cents,  six 
months.'  I  think  lieasked, '  What  paper?  ' 
I  think  I  answered,  •  Krastus  Williams's,  if 
I  could  get  it.'  I  don't  rec(dlect  what  fol- 
lowed. The  conversation  became  general 
about  the   wool,  its  quality    and    condi- 


'  tion,  and  where  it  came  from.  Then  I 
think  he  asked  me  if  fifty  cents,  six  months, 

'  would  buy  it.  I  answered,  1  think,  if  I 
could  get  the  offer,  1  would  submit  it  to 
the  owner." 

The  defendant  called  again  on  the  5th 
of  September.  The  most  particular  state- 
ment of  tlie  conversation  on  that  day  is 
contained  in  the  tenth  answer,  which  was 

I  excluded  l)y  tlie  court.  It  is  as  follows: 
"Mr.  Williams  remarked  that  he  might 
want  some  portions  of  the  wool  for  his 
son,  or  Winslow,  I  forget  which  words 
he  used.  I  think  he  mentioned  number 
two,  but   am    not  certain.     (The    witness 

(had    already    stated    that    the  wool    had 

I  been  gradeil,  and  described  the  grades.) 
I  tliink  that  was  it;  that  he  would  advise 

I  us  on  his  return  home.   The  rest  he  should 

I  want   sold;    iis    to  sell  for  him  ;  that  was 

j  the  substance  of  it.  There  miu;ht  have 
been  some  other  things,  I  don't  recollect." 
In  his  thirteenth  answer  he  says,  "I  think 

!  ihesubstanceof  theconversation  was  this: 
that  I  offered  him  the  wool  for  fifty  cents, 
six  months,  his  notes,  and  hesaid  he  would 
take  it;  or  he  offered  me  his  notes,  fifty 
cents,  six  months,  and  I  took  it."  In  his 
thirtieth  answer  he  says,  "I  told  Mr.  Wil- 

!  liams  I  thought  there  were  aboutonehun- 
dred  bales  to  arrive  of  this  same  lot.  The 
wool  that  was  to  arrive  was  to  equal  in 
grade   and    condition    the    wool   already 

1  opened,  agreeing  that  the  wool  should 
average  as  number  one  grade."  In  his 
thirty-first  answer  he  says,  "Tare  actual, 
or  three  pounds  to  the  bag.  Bags  to  lie 
charged  at  fifty  cents  apiece."  In  the 
thirty-second  answer,  "Don't  recollect  as 
to    unwashed  wool;  presume   it  was   one 

j  third  off  for  wool  unwashed.  That  was 
our  custom.  "    The  thirty-fifth  cross-inter- 

;  i-ogatory    is,  "Will    you    s\vear    Mr.  W'il- 

I  liams  ever  did  agree  that  his  notes  should 
bear  date  before  lie  had  examined  and  ac- 
cepted the  whole  wool'.'"  .\nswer,  "I 
won't  swear  to  anything.  No,  1  don't 
suppose  he  (lid.  I  have  uo  idea  about  it. " 
To  the  forty-third  cross-interrogatory  he 
says,  he   agreed   on  the   HtU  of  September 

]  that  the  whole  lot  of  wool,  both  on  hand 
and  to  arrive,  should  average  number  one 
of  the  grade  that  he  divided  it  into.  In 
his  eighteenth  answer  he  says:  "The 
question  arose,  how  long  can    this    wool 

'  remain  here  free  of  expense  to  the  buyer, 
to  Mr.  Williams,  for  instance.  I  think  I 
stated,  until  the  first  of  October:  after 
that,  he  was  to  assume  the  expense  of  the 
wool.     The  substance  was,  that  if  a  man 

I  came  in  and  wanted  to  buy  the  wool,  I 
should    have   taken    him  up,  and  sold  him 

I  the  wool   as    Mr.  Williams's    wool.     That 

I  was  the  way  1  understood  it."  His  twen- 
ty-first answer  states  that  "he  wanted 
we  should  sell  it  if  we  could." 

I  The  statements  of  Mr.  Pettibone  are 
fragmentary,  and  his  memory  seems  to  be 
very  defective.  His  deposition  is  quite 
long;  but  the  foregoing  extracts  are  all 
that  need  be  made  from  it. 

On  the  7th  of  September  a  sale  note  was 
made  by  a  member  of  the  firm  and  sent 
to  the  defendant.  It  was  supposed  to  be 
sufficient  to  bind  the  bargain;  but  proved 

I  to  be  defective.    On  the  11th  of  September 


DEXNY  o.  WILLIAMS. 


235 


tlie  (Ipfendant  called  anrl  inquired  if  nil  the 
wool  had  arrived,  and  Hiiid  he  did  nf)t 
wiHh  to  Kive  liiH  nctes  till  ;ill  tlie  wool 
had  arrived.  Pettiljone  then  added  to 
hiH  memorandum  of  the  snle  on  IiIh  hookH, 
"The  notes  to  he  dated  when  all  the  wool 
iH  e.xumined  and  ready  to  deliver.  H.  A. 
v."  On  the  Ha  me  day,  the  defendant 
said  to  Snyder,  a  menilier  of  the  firn), 
after  Kome  (■onvernati«jn  alioiit  the  wool, 
".My  Han  would  like  one  or  two  of  the 
^radeH  to  work  in  his  mill,  and  1  Hhall 
want  that  jiart  to  beshippcd  to  him  ;  and 
the  rest  I  kIuiII  want  you  to  sell  for  nie. 
1  will  let  you  know  which  of  tlie  grades 
my  Mon  will  want,  and  shall  look  to  you 
to  sec  that  the  wool  that  is  eoming  Ih 
eijunl  to  what  is  here. "  The  witness  an- 
swered, "  We  will  do  so."  Tliis  was  after 
the  defendant    hacl  received  the  sale  note,  j 

Tlie  corresponilcnce  of  the   parties   has  j 
been    iiroduced.     .None    of    the    letters    of! 
Mr.  Williams   contains   anything    tendint;  | 
to   cstaldish    tlic  plaintiff's  case.     A  letter 
of   Denny  to  I'ettil)one  of  Septeniljer  l.'ith. 
Is  sijjraifieant :   "The  wool  is  in  your  lofts;  | 
is  all  right  and  ready  to   deliver;    and  be- 
fore that  can  be  delivered, the  balance  will 
be  reacly,  and  if  it  is  not,  he  certainly  will 
not  be  obliged  to  pay  for  it    l)efore   he   re- 
ceives it."     It   api)ears   from  this  that  the 
plnntiff  did  not  then  understand  that  any 
of   the    wool    liad    then  been  delivered ;  or 
that    the    notes    were    to  be  given  till    the 
whole    was   delivered.     A    letter   of  Fetti- 
bone  &  Co.  of   Seiitember   Ihth   says,  "  We 
cannot  get    the   paper  f.<r   the  wool  until 
we  Ret  all  the  wool  in.     We  want   to   get 
the  wool  in  order  ami  weiglied  up  as  soon 
as  possible  to  do  it."     On  the  1 1th    of  Sep- 
tember they  write,  "He  will  claim  a  delay  ! 
in   the   date   of   the   notes,  as   he  says  the  ! 
wool   is    not    in    a    condition    to  deliver,  i 
What  Is  the  matter,  and  why  this  delay?"  [ 
On  the  12111  of  .September  they  write,  "  We  | 
are   as   an.\ious  as  yourself  to  get  the  sale  ; 
to  Williams   settlecl.     The   only  delay  will 
be  in  thearrival  of  tlieoneliundred  bales." 
Septetnl)er  I'lst,  they    write,  "We  are  now 
packing   anil  getting  it  in  shape  to  weigh, 
and    get    in    order  to  settle.     We  hope  the 
balance    will    lie   along  this  week,  or  that 
we  shall    know  where   it   is."     These   let- 
ters  admit    that    none    of    the  wool    had 
then    been    di'livered,  and    Indicate  that  it 
could    not   lie,  till    the  remaining  one  hun- 
dred bales   should   arrive   and    be  grndeil 
and  weighed. 

The  residue  did  not  arrive  until  Septem- 
lier  L*,"Jth.  and  proved  to  be  niiifty-aeven 
bales.  On  the  LTitli  of  September  the  de- 
fendant wrote  to  Fettibone  &  Co.,  declin- 
ing to  take   the   wool,  and   assigning   the 


delay  an  a  reason.  The  wool  wag  not  all 
graded  and  weighed  till  October  2<)th. 

All  this  testimony,  as  well  as  the  testi- 
mony not  cited,  concurs  in  showing  that 
the  execution  of  the  contract  was  to  be 
entire.  The  defendant  wished  the  whole 
to  be  graded  and  weighed,  ho  that  he 
could  decide,  before  making  any  sales, 
what  portion  to  forward  to  his  si.n  :  and 
also  ascertain  whether  the  <|uality  of  the 
whole  conformed  to  the  contract;  and 
the  amount  for  which  he  was  to  give  hlH 
notes.  There  is  no  intimation  in  the  coo- 
versation  or  the  letters  (hat  the  delivery 
was  to  be  in  Heparaie  parceU  or  at  differ- 
ent times,  or  that  thecontract  was  In  any 
respect  divisible.  And  as  to  the  agency 
of  l'ettiboiie&  Co. theconverHatiiin  stated 
docs  not  show  that  they  were  to  be  tlie  de- 
fendant's agents  to  accept  the  wool.  They 
were  the  agents  of  the  iilaintiff  as  to  the 
sale  and  delivery,  and  acted  exclusively 
for  him.  The  agency  for  the  iletendant. 
which  was  spoken  of,  related  to  the  dis- 
posal of  the  wool  after  the  delivery  of  It 
to  the  defendant  and  the  acceptance  by 
him.  It  could  not  havi-  been  a  present 
agency  to  fell ;  because  the  defendant  had 
not  then  determined  what  part  he  would 
desire  to  sell.  He  had  first  to  consult  his 
son.  And  before  Fettibone  &  Co.  could 
sell  the  wool  as  his  agents,  they  would 
ni'ed  instructions  as  to  the  terms  of  sale. 
There  wpre  no  instructions  on  this  sub- 
ject. 

It  appears,  therefore,  that  up  to  the 
time  when  the  defendant  re(>iidiated  the 
contract  on  the  I'Cth  of  Sciitember,  It 
stood  merel.v  in  parol,  without  ai.y  act  of 
delivery  or  acceptance,  either  actual  or 
constructive. 

The  defendant  would  haveliad  no  right. 
b3-  the  terms  of  the  contract,  to  take  pos- 
session of  any  part  of  the  wool,  or  sell 
any  part,  against  the  consent  of  the  plain- 
tiff; and  there  is  no  evidence  that  the 
plaintiff  had  in  any  communication  with 
the  defendant  waived  his  rights  in  this  re- 
spect, or  that  the  defendant  desired  him 
to  tlo  so.  The  property  remnineil  un- 
clituiged.  And  as  the  contract  was  in- 
valid by  the  statute  of  frauds,  for  want  of 
a  sutticient  writing,  and  for  want  of  a  de- 
livery and  acceptance  to  satisfy  the  stat- 
ute, instead  of  a  writing,  we  think  the 
jury  should  have  been  instructed  to  find 
a  verdict  f<ir  the  defendant,  on  the  ground 
that  the  evidence  was  insultlcient  In  law 
to  sustain  a  venlict  for  the  plaintiff. 
There  iloes  not  seem  to  us  to  lie  even  a 
scintilla  of  evidence  to  pri>ve  any  act  ot 
di'livery  or  acceptance.  Exceptions  sus- 
tained. 


DEVOE  0.  BRANDT. 


287 


DEVOE  T.  BRA>rDT. 

(53  N.  Y.  4C2.)  , 

Court  of  Appeals  of  New  York.    Sept.  30,  1873. 

Appeal  from  order  settlnn  uHlde  n  ver- 
dict lor  plaintiff,  nnd  grantirifi  a  new  trial. 

Action  to  rccovtr  kooiI.h  frniiduleiitly 
imrcliOML'il  by  defendant,  Uuortje  SuniuelH, 
of  i»laintiff. 

A.  R.  Dvett,  for  appellants.  C.  Bain- 
l)rl(lge  iSinitli,  for  respondent. 

Pr:CKHAM,.T.  Replevin  in  the  del  inet  for 
certain  {■oods  of  the  value  of  over  $('AH), 
frulidulontly  |>nicliaHed,  aH  iw  aliened  hy 
defendant  Samuels,  of  the  plaintiff,  with 
intent  to  cheat  plaintiff  out  of  their  value. 
They  \vere  Hulise(iiiently  found  in  the  poH- 
scHHion  of  the  defendant  IJfaiidt.  The  de- 
fendant Satiiueln  made  (lefault;  lirandt 
answered,  denying  tlie  complaint,  and 
HettInK  up  amonc  other  thiiiijH,  that  he 
liou^lit  tile  '.■•oodH  at  a  piitilic  auction 
thereof  as  the  yooda  of  Samuels. 

Tiiei-ase  was  tried  at  the  New  York  cir- 
cuit. It  appeared  in  proof,  that  in  March, 
isi;.'),  Brandt  commenced  an  action  a^aitiHt 
thiH  .Samuels  for  goods  sold  nnd  delivered 
to  hint  in  lS(i;i  and  18(14,  chiefly  in  ISC:!. 
That  Samuels  i)ut  in  no  answer,  Ijut  no 
jud;;nient  was  perfectted  until  the  7th  of 
November,  I.SIKJ,  and  tlien  for  .'$4,078. :!4 
damaKes  and  ccjsts;  and  execution  issued 
thereon  on  the  same  day  to  the  sheriff  of 
New  York,  wliicli  was  returned  on  the 
10th  of  Decemlier,  Isoo,  satisfied  to  .If:.',. 
712.77,  and  nulla  bona  as  1o  the  residue. 
It  was  shown  tliat  Samuels  had  been  in 
the  habit  of  pui-chasinfj;Koods  of  tlie  plain- 
tiff, to  a  limited  extent,  prior  to  this  sale. 
That  this  .-falo  was  made,  and  tlie  larger 
part  of  the  «()ods  delivered  on  the  LV)th  of 
()ctol)er,  iNtii;,  a  portion  on  the  aiitli  of  <)c- 
tol)er,  and  tlie  remainder  on  the  8th  of 
November  following.  That  Samuels,  at 
tlie  time  of  tlie  purchase  hy  him,  said 
nothing;;  as  to  his  circumstances,  or  as  to 
the  suit  then  pendint;  aii;aliist  liim  in  favor 
of  lirandt.  in  which  the  rinht  to  enter  up 
judgment  had  lieen  then  rUie  over  a  yejir 
and  a  half;  evidence  was  also  siven  of  the 
replevin  papers  in  this  case,  and  of  an  un- 
dertaking ftiven  by  the  defendants  for  a 
return  of  tlie  property  replevined,  before 
it  had  lipcn  clelivered  to  plaintiff. 

The  defendants  offered  iioevidence.  The 
jury  found  for  the  plaintiff.  The  ireneral 
term,  in  the  first  district,  granted  a  new 
trial. 

It  is  clear  that  there  was  siifliclent  evi 
deuce  to  j^o  to  the  jury  upon  the  <]uestion 
whether  this  was  a  fraudulent  pui-chase 
by  Samuels.  Here  wasabuudant  evidence 
for  their  consideration  that  this  punhase 
was  made  with  a  view  of  cheating;  the 
plaintiff,  nnd  that  be  never  intended  to 
pay  for  the  goods.  He  concealed ironi  the 
plaintiff  a  fact  (the  right  of  Brandt  to  en- 
ter U|)  hisjuilgment  for:$4,000l,  whidi  he 
knew  to  be  most  material,  and  he  well 
knew  that  if  plaintiff  had  been  a  ware  of 
that  fact  lie  never  would  have  made  the 
sale. 

There  is  Kood  ground  for  inferring,  from 
the  facts  proved,  that  he  iuteiided  to  com- 


mit a  fraud  In  this  purchnse,  nnd  he  delib- 
erately proceeded  to  Its  conHunin.ntlon. 
Such  a  fraud  maybe  as  easily  I'dnMummnt- 
•-'d  by  a  suppression  of  the  truth  as  by  the 
suggestion  of  a  falsehood.  The  law  U 
guilty  of  no  Buch  absurdity  as  to  re(|ulro 
a  f:ilse  alhrniatlon  as  the  only  IiiihIs  on 
which  to  prove  a  fraud  among  iiierehuntH. 
It  is  not  necessary  f>r  usual  for  iiK-reliantH 
to  iiKiuire  of  their  frustomers  as  to  Ihelr 
pecuniary  conrlitiun  at  each  sale.  The 
fact  to  be  proved  is  that  the  punloiNe  tvas 
made  with  intent  to  delrnud.  .\ny  evl- 
ilence  that  will  satisfy  a  jury  of  that  fact, 
that  affords  reasonable  proof  of  suili  a  pur- 
pose makes  a  case  for  a  jury.  'I'h.it  evi- 
dence maybe  positive  or  eircuiiistanlial, 
and  as  various  as  the  proof  of  any  other 
fact. 

'J'lie  proof  here  is  abundant :  obviously 
defendant  Samuels  was  then  wli(dly  In- 
solvent. The  deficiency  on  the  execution 
showed  him  able  to  pay  only  about  lifty 
per  cent,  of  these  two  debts.  He  pur- 
chased when  he  knew  the  gooils  would  or 
might  be  all  sei/.ed  and  consumeil  upon 
this  execution.  In  fact  a  portion  of  these 
goods  was  delivered  after  the  e.xwution 
was  issued.  It  would  seem  as  if  he  bought 
in  order  to  subject  the  goods  to  that  ex- 
ecuMon;  and  he  offers  no  explanation. 
Nichols  v.  Michael,  2:1  N.  Y.  I'lU,  •.•74;S0 
Am.  Dec. '.'."i!);  Hennequin  v.  Naylor,  24  N. 
Y.  i:!!);  Karl  of  Bristol  v.  Wilsmore.  1 
Barn.  &  ("ress.  ,^14.  We  may  assume  then 
that  these  goods  were  fraudulently  pur- 
chased. No  title  then  jiMssed,  and  the  ven- 
dor can  retake  them  from  any  one  but  a 
bona  tide  purchaser.  Is  Brandt  such  a 
purchaser?  The  goods  are  found  In  his 
possession,  and  it  rests  with  him  to  show 
that  he  is  a  bona  lide  purehaser  thereof. 
He  shows  nothing.  He  alleges  in  his  an- 
siver  that  he  lunight  them  at  public  auc- 
tion, as  the  goods  of  Samuels.  But  he 
gives  no  proof  of  that;  and  It  would  not 
aid  him  if  he  did,  unless  he  showeil  lh;it 
he  imid  v:iliie  for  them.  But  assume  that 
Braiiilt  seized  these  goods  upon  his  exei-u- 
tioii  and  purchased  them  at  a  sale  there- 
on, he  dill  not  thereby  bi-come  a  bona  lide 
purchaser. 

In  this  case,  upon  several  grounda: 
First.  Tlie  facts  dls?losed  show  that  there 
was  enough,  to  put  him  upon  ini|uiry  as 
to  the  frauil  of  Samuels,  even  if  he  could 
otherwise  beoire  a  bona  li  le  purchaser 
(I)urell  V.  Haley.  1  Paige,  402,  a  case  much 
like  tiie  one  at  bar);  Second.  Because  the 
plaintiff  in  tlie  execution  made  no  ad- 
vances thereat.  It  was  not  lu-cessary.  to 
avoid  such  sale,  that  the  execution  cred- 
itor knew  of  the  fraudulent  purchase  (.\hIi 
V.  I'utnam,  I  Hill,  :i(rj;  Root  v.  Ireiich,  IS 
Wend.  ,')70;  2S  Am.  l)cc.  4^2;  Cary  v.  Ho- 
tailing,  1  Hill,  .■til;. -17  .\in.  l)e<-.  ::2:t;  .\t- 
woodv.  Dearborn.  1  .Mien, 48;!;  70.\ni.l)ec. 
7.",.'.;  Mortiey  V.  Walsh,  s  fow.  2:is;  .Acker 
V.  t'anipiielk  2:1  Wend.  :v72;  Karl  of  Bristol 
V.  Wilsmore.  su|  ral  ;  Third.  IWca use  such 
jiropcrtv.Ko  fraudulently  |iurcliased.  Is  not 
the  subji-ct  of  levy  and  sale  by  a  sheriff. 
Replevin  in  the  ccplt  will  lie  then-fore  at 
the  suit  of  the  defrauded  vendor.  Seo 
same  authorities. 

It  is  only  necessary  toile<lile  In  this  case 
(hat  Brandt,  the  exi-culion  creditor,  doe» 


238 


DEVOE  V.  BRANDT. 


not  become  a  Ixiiia  fide  purcluiser  by  boy- 
iriK  K'xi'ls  at  a  sale  thereon  which  were 
fraudulently  purchased  by  the  defendant 
in  that  execution.  That  proceeding  gave 
him  no  better  title  tlian  a  mere  delivery 
would  from  the  fraudulent  vendee.  He 
advanced  nothinfr,  and  he  lost  notliinp;  by 
the  proceedinj;.  Tlie  sale  on  the  execution 
did  not  contain  the  tiist  element  to  con- 
stitute this  defendant  a  bona  fide  purchas- 
er.   The  execution    was  returned  unsatis- 


fied in  part.  No  lien  was  therefore  relin- 
quished, and  the  amount  realized  from  a 
strauser's  property  would  bo  stricken 
from  the  execution  on  application  to  the 
court.  The  charge  of  the  court  was  there- 
fore riKht. 

The  order  of  the  general  term  granting 
a  new  trial  should  be  reversed  and  judg- 
ment ordered  upou  the  verdict  for  the 
plaintiff. 

All  concur. 


DEXTER  0.  XOIITOX. 


241 


DKXTER  V.  NORTON  et  al. 

(47  N.  Y.  62.) 

Court  of  Appeals  of  New  York.    1S71. 

Action  for  (Jamnges  for  breach  of  a  con- 
tract to  sell  and  deliver  cotton.  'J'iic 
o))inion  states  tlic  facts.  JuilRnient  tor 
defendant  disniis.siug  tne  coniphiiiit. 

James  C. Carter,  tor  appoiiant.  Win.  \V. 
McFariane,  for  respondents. 

CHOHCH,  C.  J.  Tiie  contract  was  for 
tlie  sale  and  delivery  of  specilic  articles  t)f 
personal  property.  Eacli  l)alc'  scjld  was 
desi;;nated  liy  a  particnlar  niark,  and 
there  is  nothing  in  the  case  to  show  tliat 
these  marks  were  used  merely  to  dlstin- 
guish  the  general  kind  or  (luality  of  the 
article,  l)nt  they  seem  to  have  Ijeeii  used 
to  descril)e  the  particular  bales  of  cotton 
then  in  possession  of  the  defeutiant.  Nor 
docs  it  appear  that  there  were  othei-  hales 
of  cotton  in  the  market  of  the  same  kind, 
and  marked  in  the  same  way.  The  plain- 
tiff would  not  liavR  l)een  oldigcd  to  ac- 
cept any  other  cotton  than  tlie  hales  spec- 
ified in  the  houcrht  note. 

Tlie  contract  was  executory,  and  vari- 
ous tilings  remained  to  he  done  to  the  one 
hundred  and  sixty-one  Ijales  in  question 
by  the  sellers  licfore  delivery.  The  title 
therefore  did  not  pass  to  tlie  vendee,  but 
remained  in  the  vendor,  .loyce  v.  Adams, 
8N.  Y.  291. 

This  action  was  lirought  liy  the  pur- 
chaser against  the  vendor  to  recover  dam- 
ages for  the  nun-delivery  of  the  cotton, 
and  the  important  and  only  (juestion  in 
the  case  is,  whether  upon  an  agreement 
for  the  sale  and  delivery  of  specitic  articles 
of  ])erHoual  [iroperty,  under  circuinstaiices 
where  the  title  to  the  property  does  not 
vest  in  the  vendee,  au<',  the  property  is  de- 
stroyed by  an  accidental  fire  before  deliv- 
er.v  without  tlie  fault  of  the  seller,  the  lat- 
ter is  liable  upon  the  contract  for  dam- 
ages sustiiincd  by  the  purchaser. 

The  general  rule  on  this  subject  iR  well 
establi-hed  that  where  the  performance 
of  a  tluty  or  charge  created  by  law  is  pre- 
vented by  inevitable  accident  ivithout  the 
fault  of  the  party  iie  will  l)c  excused,  but 
when'  a  person  alisolutely  contracts  to  do 
a  certain  thing  not  impossible  or  unlaw- 
ful at  the  time,  he  will  not  be  excuseci 
from  the  obligati(pns  of  the  ccjiitract  un- 
less the  performance  is  made  uidawful,  or 
is  preventeii  by  tlie  other  party. 

Neither  inevitntile  accident  nor  even 
those  events  denominated  acts  of  God 
will  excuse  liim.  and  the  reason  given  Is, 
that  he  might  have  provided  against 
them  by  his  co'itract.  Paradinc  v.  .Taiie. 
Alevn,  27:  llannouv  v.  Ilingliam.  12  .V. 
Y.  yj,  02  Am.  l>ec.  142;  Tompkins  v.  Dud- 
ley, 2.")  N.  Y.  272,  S2  Am.  Dec.  34!». 

But  there  are  a  variety  of  cases  where 
the  courts  have  implied  a  condition  to  tlie 
contract  itself,  the  effect  of  which  was  to 
relieve  the  party  when  the  performance 
had  without  his  fault,  het-oine  impossible; 
and  the  aiiparent  confusion  in  the  author- 
ities has  grown  out  of  the  dirtieulty  in  de- 
termining in  a  given  case  whether  the  im- 
LAW  SA1.^S — IG 


plication  of  a  condilion  should  be  npidled 
or  not.  anil  also  in  some  cases  in  placing 
the  decision  upon  a  wrong  bui-ls.  The  re- 
lief afforded  to  the  party  in  the  cascH  re- 
ferred to  is  not  baseil  upon  exceptions  to 
the  general  rule,  but  upon  the  con«trur- 
tion  of  the  contract. 

For  instance,  in  the  case  of  an  absolute 
promise  to  marry,  the  death  of  either 
(larty  disdiarges  tlie  contract,  liecauxe  It 
is  inferred  or  presumed  that  thi' contract 
was  inudu  upon  the  condition  that  botU 
parties  should  live. 

So  of  u  eontract  made  by  a  painter  to 
paint  a  picture,  or  an  author  to  conipose- 
a  work,  or  an  apprentice  to  serve  liln  ina«- 
ter  a  specified  numlior  of  years,  or  in  any 
contract  for  personal  services  dependent 
upon  the  life  of  the  individual  making  It. 
the  contract  Is  discharged  upon  the  death 
of  the  party,  in  accordance  with  the  con- 
dition of  continued  existence,  raised  by 
implication.  Cutter  v.  I'owell,  2  .Smith 
Lead.  Cas.  50. 

The  same  rule  has  been  laiil  down  as  to 
property  :  "  As  if  .\.  agrees  to  sell  and  deliver 
his  horse  Eclipse  to  15.  on  a  fixed  future 
day,  and  the  horse  die  in  the  interval,  the 
obligation  is  at  an  end."  Ili'iij.  Sales,  424. 
In  replevin  for  n  horse  and  jndgnient  of 
retorno  haliendo,  the  death  of  the  horse 
was  liehl  a  good  plea  in  an  action  upon 
tlie  bond.  Carpenter  v.  Sti'vens,  12  Wend. 
."iS!).  In  Taylor  v.  Caldwell.  :!  Best  & 
Smith.  S3(;,  .\.  agreed  with  It.  to  give 
him  the  use  of  a  music  hall  oa  specified 
days,  for  the  purpose  of  liohliiig  conci-rts. 
and  before  tlie  time  arrived  tlie  build- 
ing was  aeciilerilally  liiirned  ;  Held,  that 
lioth  p.irlies  were  dischargecl  from  the 
contract.  liiackliurn,  .1.,  at  the  close  of 
his  opinion,  lays  down  the  rule  as  fol- 
lows: "The  principle  seems  to  us  to  be. 
that  ill  contracts  in  which  the  per- 
formance (lepenils  on  the  continued  exist- 
ence of  a  given  person  or  tiling,  a  conili- 
tion  is  implied  that  the  Impossibility  of 
performance,  arising  from  the  perishing 
of  the  jierson  or  thing,  sliiill  excuse  the 
performance."  .\nd  the  reason  given  for 
the  rule  is.  "because  from  the  nature  of 
the  contract,  it  is  apparent  that  the  par- 
ties contracted  on  the  basis  of  the  contin- 
ued existence  of  the  particular  person  or 
chattel." 

In  School  District  v.  Dauchy,  2.'>  Conn. 
,130,  (is  Am.  Dec.  ;S71,  tlie  (lefemlnnt  had 
agreed  to   liuiM  a  scliool-lioi.se  by  the  1st 

of   .May,  and    Had    it   nearly  c pleted  mi 

the  27th  of  April,  when  It  was  struck  liy 
lightning  and  liurned  ;  and  it  was  licl.l 
that  he  w,is  liable  in  damages  fortlie  non- 
performance of  the  cot^tract.  Hut  tlip 
court,  while  enforcing  that  general  rule 
in  a  case  of  evident  hardship,  recognlien 
tli4>  rule  of  an  implied  condilion  In  case  of 
the  destruction  of  the  spirilic  subject-mnt- 
ter  of  thee  intract;  and  this  Is  the  rule  of 
the  civil  law.  I'othler  Cont.  Sale,  art.  4, 
$l,p.  ."1.  We  were  referred  to  no  author- 
itv  against  this  rule.  Itilt  the  learned 
counsel  b)r  the  appellant,  in  his  very  able 
and  forcible  arLrunient,  insisted  that  the 
general  rule  should  be  applied  in  this  case. 
While  it  is  dillicult  to  trace  a  clear  ills- 
tiuction  between  thiscaseiunl  iliose  wliere 


242 


DEXTER  V.  NORTON. 


no  condition  lias  been  implied,  the  tend- 
ency of  the  authorities,  so  far  as  they  go, 
recognize  such  a  distinction,  and  it  is 
based  upon  the  presumption  tliat  the  par- 
ties contemplated  the  continued  existence 
■of  the  subject-matter  of  the  contract. 

The  circumstances  of  this  case  are  favor- 
able to  the  plaintiff.  The  property  was 
raercliandise  sold  in  the  market.  The  de- 
fendant could,  and  from  the  usual  course 
of  business  we  may  infer  did,  protect  him- 
self by  insurance;  but  in  establishing 
rules  of  lial)ility  in  commercial  transac- 
tions, it  is  far  more  imixirtant  that  they 
should  be  uniform  and  certain  than  it  is 
to  work  out  equity  in  a  given  case.  There 
is  no  hardship  in  placing  the  parties 
(especially  the  buyer)  in  the  position 
they  were  in  before  the  contract  was 
•nade.  The  buyer  can  only  lose  the  prof- 
its of  the  purrhuse;  the  seller  may  luse 
the  whole  contract  price,  and  if  his'liabil- 
ity  for  non-delivery  should  be  established, 
the  enhanced  value  of  the  property. 
After  considerable  reflection,  1  am  of  the 
opinion  that  the  rule  here  indicated  of  an 
implied  i-ondition  in  case  of  the  destruc- 
tion of  the  proijerty  bargained  without 
fault  of  the  party,  will  operate  to  carry 
out  theintention  of  the  parties  under  most 
circumstances,  and  will  be  more  jrist 
than  the  contrary  rule.  The  buyer  can  of 
course  always  protect  himself  against  the 
effect  of  the  implied  condition,  by  a  pro- 


vision in    the  contract  that  the  property 
shall  be  at  the  risk  of  the  seller. 

Ijpon  the  grounds  upon  which  this  rule 
is  based  of  an  implied  condition,  it  can 
make  no  difference  whether  the  property 
was  destroyed  by  an  inevitable  accident 
or  by  an  act  of  God,  the  condition  being 
that  the  property  shall  continue  to  e.xist. 
If  we  were  creating  an  exception  to  the 
general  rule  of  liability,  there  would  be 
force  in  the  considerations  urged  upon  the 
argument,  to  limit  the  exception  to  cases 
where  the  property  was  destroyed  by  the 
act  of  God.  upon  grounds  of  public  policy, 
but  they  are  not  material  in  adopting  a 
rule  for  the  construction  of  the  contract  so 
as  to  imply  a  condition  that  the  property 
was  to  continue  in  existence.  It  can  make 
no  difference  how  it  was  destroyed,  so 
long  as  the  party  was  not  in  any"  degree 
in  fault.  The  minds  of  the  p.-irties  are 
presumed  to  have  contemplated  the  pos- 
sible destruction  of  the  property,  and  not 
the  manner  of  its  destruction;  and  the 
supposed  temptation  and  facility  of  the 
seller  to  destroy  the  property  himself  can- 
not legitimately  operate  to  affect  the  prin- 
ciple involved. 
The  judgment  must  be  afflrraed. 

ALI>EN,  GROVER,  and  RAPALLO,.!.!., 
concur;  PECKHAM  and  FOLGER,  JJ.. 
dissent. 

Judgment  affirmed. 


DOANE  V.  DUNHAM. 


245 


DOANE  et  al.  v.  DUNHAM. 

(79  III.  131.) 

Supreme  Court  of  Illinois.     Sept.  Term,  1875. 

.AHSiimpsit  by  John  H.  Dunlinn)  agiiiiiHt 
Joliii  \V.  Donne  nnd  others  for  certain 
Hiimir  Hold  ami  delivered.  From  a  judg- 
ment for  plaintiff,  defendants  n|)[)eal.  He- 
versed. 

I'laintiff,  a  commisHion  mercliant,  had 
on  hand  a  lot  of  Mollar  &  Martin's  pow- 
dered KUKar.and  one  of  his  emplo.vescalled 
on  defendants,  wholesale  groeers,  and 
sold  them  L'O  barrels  of  sneh  sUKur,  at  V.'j]{ 
rents  per  pound.  No  time  was  H[)eeiMed 
for  the  delivery  of  the  suKar,  but  from  the 
course  of  business  it  wouhl  seem  to  lie  at 
the  option  of  the  buyer,  to  ho  exercised 
within  a  reasonable  time.  No  si)ecitic 
barrels  were  set  apart  at  the  time  of  the 
sale,  but  (lel'endantH,  two  days  later,  sent 
to  plaintiff's  store  for  the  sugar,  and  20 
barrels  were  delivered.  It  was  l<ept  by  de- 
fendants without  any  examination  for  L'G 
days,  when  it  was  found  to  be  of  an  un- 
nicrcliantalile  quality.  It  appeared  orig- 
inally to  have  been  powdered  sugar,  of 
.Mollar  &  Martin's  make,  but  waseaked  so 
hard  as  to  be  useless  as  powdered  sugar, 
and  not  worth  the  price  paid  for  any  pur- 
pose. Defendants'  offer  to  return  it  was 
refused. 

Hugh  A.  White  and  Sidney  Smith,  for 
appellants.  Hnwes  &  La wrenre,  for  ap- 
pellee. 

WALKEH,  J.  This  case  was  previous- 
ly before  this  court,  and  is  reported  in  0.1 
III.  .")12.  The  facts  presented  by  this  record 
do  not  vary  materially  from  those  stated 
in  the  opinion,  as  reported,  except  there 
seems  to  be  u  conflict  of  evidence  on  the 
liist  trial  as  to  the  length  of  time  the 
sugar  was  retained  by  appellants  before 
it  was  examined,  found  to  be  different 
from  that  intended  to  be  purchased,  nnd 
the  notice  to  lake  it  hack. 

When    the  case  was   formerly  before  us, 
it  was   hchi    that  this   was   an    executory 
contract,  and  after  the  sugar  wasrecelveil 
appellants    were   entitled    to  a  reasonable 
time  within  which  to    make   an   examina- 
lion,   and    to   give   notice   to  remove   the 
sugar;  and    that    whether  the  notice  was  , 
given    in    apt    time    was  a   question  to    be 
determineil    by  the  jury,  in  the  light  of  all  1 
the     attending     circumstances,     and,    of! 
course,  with  proper  instructions  from  the 
court.  I 

.Vppellce  having  again  recovered  a  judg- 
nienl  lor  the  supposed  value  of  the  sugar, 
aiipi'llants  again  bring  the  rccoi'd  to  this 
court,  and  seek  a  reversal,  upon  the 
grounds  that  the  court  below  gaveini-. 
proper  instructions  on  behalf  of  appellee,  I 
and  refused  to  give  proper  ones  asked  by  j 
ap[)ellantH.  "  j 

An  examination  of  those  given, of  which  i 
com|)laint  is  made,  fails  to  disclose  error.  ' 
They  inform  the  jury  that  there  should 
have  been  an  examination  of  the  sugar, 
and  a  notice  to  take  It  back,  within  a  rea-  ' 
sonnlile  time,  considering  all  the  circum-, 
stances.  This  is,  no  doubt,  true,  as  a  le- 
gal proposition,  b^ven  iiniler  clear  nnd 
Ba I isfactory  evidence  that  it  wasthegeu-| 


pral  and  uniform  usaKO  for  the  kind  of 
goods  in  (juestion  never  to  be  examined 
until  the  wh(de«ale  m.  rchaat  sold  to  his 
customer,  the  proposition  is  correct.  If 
sucli  was  the  usage,  ami  both  partiesdenlt 
with  reference  to  It,  then  it  would,  accord- 
ing to  such  usage,  be  within  a  reasonnldo 
time  to  exandne  it  when  offered  for  sale 
by  appellants.  lint  the  rule,  no  doubt, 
has  the  limit  that  it  must  be  so  ofrered  in 
due  course  of  tratle.  A  person  whoshould 
buy  as  speculation,  or  with  the  intention 
of  holrling  it  forsali'ata  distant  period 
of  time,  coulil  not  claim  Its  benefits.  It 
could  oidy  be  applieii  in  cases  fulling  with- 
in the  general  course  of  trade. 

The  court  below  refused  to  Instrnct  for 
ni)pellaiits,  that: 

"If  tlie  jury  believe,  from  the  eviilence, 
that  it  is  not  the  custom  among  wholeHale 
<lealers  in  Chicago,  engaged  iti  business  as 
defendanls  were,  to  examine  sugnrofthe 
kind  and  quality  sold  by  plaintiff  to  the 
defendanls,  upon  receiving  the  same  In 
store,  or  upon  sale  of  the  same  to  custom- 
ers, and  that  it  was  not  customary  for 
such  sugar  to  be  examined  until  opened 
by  dealers  to  sell  from  to  customers,  nnd 
that  the  sugar  «  as  damaged  w  Ih'u  It  was 
delivered,  and  not  of  the  quality  sold 
them,  the  jury  are  to  take  into  considera- 
tion all  of  these  facts  and  things  In  deter- 
mining whether  defendants  gave  plaintiff 
notice,  within  a  reasonable  time,  to  take 
back  said  sugar;  and  If  they  find  there- 
from that  they  did,  then  they  must  llnd 
for  the  defi-ndants. " 

If  such  was  the  uniform  custom,  under- 
stood and  a(  ted  ujion  by  the  trade  In  Chi- 
cago, then  it  is  but  a  fair  preHumption 
thai  tlie  parlies  acted  upon  it,  and  should 
be  governed  by  it.  There  was  sutlicient 
evidence  upon  which  to  base  the  Instruc- 
tion, nnd  it  should  have  been  given. 

Appellants  asked,  but  tliecourt  refused 
to  give,  this  instruction  : 

"II  the  jury  believe,  from  the  evidence, 
that,  accoriiing  to  the  well  established 
usage  and  custom  of  trade  among  whole- 
sale dealers  in  standard  powdiTtd  sugar 
in  (.'hicago,  the  same  is  sold  and  handled 
In  original  packages,  an<l  no  examinatluo 
is  made  as  to  i|u;ility  or  condition  tlier^ 
of  upon  [)urchase  or  sale  thereof,  nnd  that 
tlie  plaintiff  was  familiar  with  said  usage 
and  custom,  ami  had  longbcen  in  thehub- 
it  of  hanilling  and  dealing  in  salil  sugar 
in  Chicago,  and  that  the  sugars  in  ques- 
tiou  were  nut  examined  by  either  parties 
when  taken  from  plaintiff's  store;  anil  If 
the  jury  also  believe,  from  the  evidence, 
that  said  sugar  was  caked  when  so  taken 
from  plaintiff's  store,  and  not  in  the  con- 
dition contemplatetl  by  either  plaintiff  or 
defendants,  and  that  the  defendants  dealt 
with  said  sugars  pursuant  to  said  usage 
and  custom,  and  that  as  soon  as  they 
found  out  that  said  sugar  was  damaged 
thev  oftereil  to  return  the  same,  nnd  noti- 
fied said  plaintiff  to  take  same  away,  and 
thot  the  plaintiff  m-i-'lected  so  to  do,  and 
that  the  same  was  destroyed  by  lire  n  hllo 
being  so  held  by  defendants,  subject  to 
the  <irder  of  said  plaintiff,  then  they  must 
tiixl  for  the  defendants." 

In  this,  we  think,  the  court  erred. 

It  has  been  fre<iuenlly  held  by  thlscourt. 


246  DOANE  V.  DUNHAM. 

K.  ho  ,r,.nPinl  that  I  nresumntion,  then  it  was  manifest  error 
to  enter  into  and  f""^'-' «  P""^' "J '„  ,""  instrnctions  the  judsraeut  of  the  court 
the  contract  relates.     Aud  if  such  be  the       Judsment  leveiseu. 


DONALDSON   o.  FAUWELL. 


249 


DONALDSON  V.  FAIIWELT.  et  al. 

(93  U.  S.  &"!1.) 

Supreme  Court  of  the  United  States.    Oct. 
Term.  1S7G. 

Error  to  the  ciri-uit  court  of  the  Dnited 
StutBH  for  the  eaHteri)  district  of  Wim-on- 
Rin. 

lOmaiiuf'l  Mann,  a  merchant  ntRlrhficlO. 
UiM.,  lileil.  May  21,  ISTJ,  his  petition  in 
hankniptcy.  1-ie  was  duly  niljiid^te,]  n 
bankrupt  the  (Itli  day  of  .June,  ami  the 
plaititllT  waw.  on  the  list  day  of  ,Iuly,  ap- 
pointed \i\»  assicnee.  in  the  month  of 
April  of  that  year  the  deleiidante  sold,  at 
Cliicntco,  ti)  Nlann,  on  credit,  merchan<liise, 
amounting  in  value  to  .1f.'i,(lilO.  The  last  of 
the  invoices  bears  date  the  17th  of  that 
month.  Ilia  son  was  the  a^cnt  in  muUint; 
the  pureliase,  and  diret  toil  the  f-oods  to 
lie  shipped  to  .Milwauliee,  to  lie  liaided 
from  tliere  to  Kiclilield.  He  knew  that 
his  father  was  then,  and  for  two  or  three 
.vears  before  had  been,  insolvent,  and  tes- 
tified that  at  the  time  of  the  purchase  he 
did  not  e.xpcct  that  his  father  would  pay 
lor  the  ttoods;  that  he  did  not  expect  to 
pay  for  them  himself;  ami  that  his  ob- 
ject in  having  tliein  sent  to  .Milwaukee 
was  to  plare  thi'in  in  the  hands  of  one 
Schram.  in  order  that  they  should  he  there 
(lisposed  of,  an<l  tlie  pfoceeds  p:iid  to  some 
creditors  of  his  father,  who  had  sold  him 
produce  and  advanced  liini  money.  'J'he 
troods  were  shipped  to  "  E.  .Mann,  Mil- 
waukee," and,  on  their  arrival,  sent  to 
Suliram'H  store.  Mann  was  reiiuted  to  be 
solvent.  The  defendants  hail  tio  notice  of 
his  insolvency  until  the  last  days  of  May. 
In  .lune  they  took  possession  olthe^ioods, 
with  the  exception  of  §1IM(  in  value,  in  the 
store  of  .Mann,  at  Iticlitield.  and,  after 
formally  ilemaiulint;  them  of  the  assi;;me. 
shipped  them  to  Chiciigo.  This  action  is 
l)rou(;lit  by  the  asnignees  to  recover  thc 
value  of  them.  The  court  save  the  jury  a 
flf'iieral  charKe,  to  the  f(dlowinK  parts  of 
which  the  plaintiff  excepted:  "The  sale 
made  by  the  defendants  jiassed  the  title  in 
the  property  to  the  liankrupt.  Iiut  It 
passed  a  defeasil)le  title;  that  is  to  say,  it 
could  b(>  rendered  inoperative  at  the  In- 
stance of  the  vendors.  Farwell  &  (,'o.  If 
the  bankrupt  retained  the  iimperty  at  the 
time  of  the  lilirifj  of  the  petition  in  bank- 
ruptcy, the  title  passed  to  the  assij;nee; 
and,  as  we  think,  the  weight  of  authority 
is  it  passed  as  a  defeasible,  and    not  as  an 


absolute,  title,  with  the  rlflit  still  on  the 
part  of  the  viiiilors  to  reclaim  the  prop- 
erty, provlrled  it  was  ilone  within  a  rea- 
Konnble  lime  alter  the  sale,  and  after 
knowledi;e  <if  thi^  fraud  which  had  been 
perpetrated."  There  was  a  verdict  for  the 
tIefendantH.  .JudKnient  havint;  been  ren- 
dered tliere<in,  the  asslKuee  sued  out  this 
writ  of  error. 

W.  V.  Lynde,  for  pluiutiff  in  error.  .Mr. 
E.  Mariner,  contra. 

Mr.  Justice  DAVLS  delivered  the  opinion 
of  the  c<iurt. 

The  instructions  present  the  <ineHtlonH 
of  law  arising  upon  the  facts  which  iIiIh 
controversy  involves.  The  iloctrlne  In 
now  esl.iblishcd  by  a  preponderunce  of 
authority,  that  n  party  not  intending  to 
pay,  who,  as  in  tills  instance.  Induces  the 
owner  to  sell  hliniioodsoD  credit  by  fraud- 
ulently concealinn  his  Insolvency  and  liiH 
intent  not  to  pay  lor  them,  is  uuilty  of  a 
fraud  which  entitles  the  vend<ir,lfno  Inno' 
cent  third  party  has  ai'(|uired  an  intrrest 
in  tliLMii,  to  disallirni  the  contract  and  re- 
cover the  goods.  I'vrd  v.  Jliill.  L"  Keyes, 
<)17:  .lohnson  v.  Monell,  Id.  r,.V.;  Notde  v. 
.■\ilams.  7  Taunt,  ."ill;  Kllliy  v.  Wilson, 
Hyan  A:  .Moody.  I7S;  llristol  v.  Wilsmore. 
1  Itarn.  &  Cress.  .'lU;  Stewart  v.  ICinerson, 
.'il'  .N.  II.  .'iOI  ;  Itenjaniiii  on  Sales,  s(rt.  440, 
note  of  the  .American  editor,  and  tases 
there  citi'd. 

Mere  the  vendors  exercised  the  right  of 
rescission  shortly  after  the  sale  in  ques- 
tion, and  as  soon  as  they  obtaineil  kn<iwl- 
edge  of  the  fraud.  If.  therelon-.  this  con- 
troversy were  betwi'en  .Mann  and  them, 
it  is  dear  that  he  would  not  bo  entitled  to 
recover. 

The  ahsignment  relates  back  to  theconi- 
inencement  of  the  prcu-eedings  In  bank- 
ruptcy, and  vests,  tiy  operatiiui  of  law,  In 
the  assignee  the  property  of  the  bankrupt, 
with  certain  spccilied  exceptions,  a  It  In  mgh 
the  same  be  then  attaclieil.  It  also  dis- 
solves an>  attachment  made  within  four 
UKinths  next  preceding  thccommencenient 
of  the  proceedings.  If  there  bo  no  such 
lii'lis.  and  the  property  has  not  been  con- 
veved  in  fraud  of  creditors,  he  has  no 
greater  interest  in  or  b.ttir  title  to  It 
than  the  Imnkrupt.  Only  the  defeasllde 
title  of  the  latter  to  the  goods  In  contro- 
versv  passed  to  the  assignee,  and  It  waH 
determined  by  a  prompt  diHalllrmaiice  ot 
the  contract. 

Judgment  alllrmed. 


DORIl  0.  riSIlKli, 


251 


DORR  T.  FISHER. 

(1  Ciish.  271.) 

Supreme     Judicial     Court     of     Massachusetts. 
Suffolk  and  Naatucket.     March  Term,  1848. 

This  wa8  an  action  to  recover  the  price  of 
two  tul)M  of  hutter.  The  iilaiiitiff  liavinjr 
been  allowed,  aKuiiiHt  oliji-clioii  on  the 
part  of  the  (lefendant,  to  prove  hi.>i  claim 
an  a  hook  account,  the  defendant  then 
introduced  evidence  that  in  November, 
lM-45,  lie  offered  several  kegM  of  liutter  to 
the  defendant  f(jr  sale.  On  examining  the 
butter,  (two  or  three  keuH  only,)  the  de- 
fendant told  the  i)lnintiff  that  he  was  un- 
able to  decide  whether  it  was  sjood  or 
not,  but  that  he  wanted  it  of  a  lirst-rate 
quality.  The  plaintiff  then  said  that  he 
called  the  butter  first-rate,  and  the  defccid- 
unt  replied  that,  if  it  was  good,  the  plain- 
tiff might  leave  him  two  tubs.  The  two 
tubs  were  left  at  the  defendant's  store, 
where  they  remained  for  about  a  week, 
when  the  plaintiff  came  to  the  store,  and 
some  conversation  ensued  relative  to  the 
butter.  The  plaintiff  was  there  again 
some  time  afterwards  and  reiiuested  that 
the  liutter  should  be  put  into  the  cellar. 
The  principal  question  was  as  to  th'jqual- 
ity  of  the  butter,  and  the  eviilence  upon 
this  point  was  conflicting.  The  defendant 
contended  that  the  butter  was  sold  under 
a  warranty  that  it  was  of  the  best  (piali- 
ty,  and  that  Ihe  burden  of  proof  was  on 
tiie  plaintiff  to  prove  tliat  it  was  of  such 
a  (piality.  Judge  instructed  the  jury  that 
if  the  butter  were  sold  with  a  warranty 
as  to  (piality,  or  with  a  representation 
aniountiug  to  a  warriinty,  the  burden  of 
proof  was  on  the  defendant  to  show  that 
it  was  not  e(|ual  to  th-;  warranty  or  rep- 
resentation. 'I'lie  jury  returned  a  verdict 
against  the  defendant,  who  thereupon 
filed  exceptions, 

T.  Willey,  for  plaintiff.  T.  Went  worth, 
lor  defendant. 

SII.WV.  C.  J.  Tills  cause  lins  been  ar- 
gued. i)u  the  part  of  tlie  defendjuit.  as  if 
tile  suit  were  brought  upon  an  open,  un- 
executed contract  for  the  purchase  of 
goods;  whereas  tlie  declaration  is  in  In- 
debitatus assumpsit  for  goods  sold  and 
delivered.  To  maintain  thiiJ  action,  it  is 
not  necessary  to  set  out  the  contract  of 
sale,  with  its  conditions  and  limitations; 
it  is  enough  to  prove  an  agreement  for  a 
sale  of  the  goods,  at  a  fixed  price  in  mon- 
ey. <ir  witliout  a  price,  (in  which  case,  the 
law  imjilies  an  agreement  to  pay  so  much 
as  they  are  worth.;  and  an  actual  deliv- 
ery, ivhereby  a  debt  arises.  A  delivery  by 
the  vendor  implies  an  acceptance  by  the 
vendee.  An  offer,  by  the  vendor,  not  ac- 
cejited  by  tlie  vendee,  may  lie  a  good 
tender,  and  a  good  [lerformance  on  ills 
part,  but  It  Is  not  a  delivery.  If  there  are 
conditions  annexed  to  the  agreement  of 
sale,  respecting  tlie  quality,  or  other  clr- 
cuiustances,  wliich  are  not  complied  with 
by  the  vendor,  the  vendee  should  ilecline 
to  acce|it  the  goods;  but,  it  he  does  accept 
them,  the  acceptance  is  a  waiver.  And. 
8o,  In  an  indebitatus  assumpsit,  for  goods 
sold  and  delivered,  the  plaintiff  must  prove 


a  delivery,  or  he  will  fall  In  the  action. 
And  this  is  not  conliticd  to  the  case  of  an 
implied  assumpsit,  on  a  quantum  valebut; 
if  the  sale  be  made  by  an  express  contract, 
not  under  seal,  and  the  goods  an- actually 
delivered,  it  Is  siifliclent  to  allege  that  the 
defendant  is  indebted  to  the  plaintiff  for 
gooils  sold  and  delivered,  and  the  law  lin- 
[ilies  a  promise  to  pay.  .No  matter,  there- 
fore, what  may  have  been  tbe  terniH  and 
conditions,  under  which  goods  are  sold 
anil  delivered;  If  notiiing  remiiln  but  the 
obligation  to  pay  for  them,  this  Is  a  debt, 
the  existence  of  which  Hupports  theallega- 
lion  (jf  being  indebted,  and  supersedes  the 
necessity  of  setting  out  specially  sucb 
terms  and  conditions. 

"  Where  goods  have  been  sold  and  actu- 
ally delivered  to  the  delendant,  though  un- 
der a  special  agreement.  It  is  in  general 
sullicient  to  declare  on  the  indebitatus 
count,  provided  the  contract  were  to  pay 
in  money,  and  the  credit  be  expired."  1 
("hit.  I'lead.  :',:!S. 

This  is  not  a  mere  technical  rule  of 
pleading,  but  a  sound  rule  of  law  and  jus- 
tice, growing  out  of  the  nature  of  a  sale. 
Were  it  otherwise,  and  were  the  plaintiff, 
after  a  delivery  cjf  goods  on  a  contract  of 
sale,  bound  to  prove  the  terms  and  condi- 
tions of  such  sale,  and  to  prove  allirma- 
tively  that  he  liati  complied  with  those 
conditions,  on  his  part,  the  result  would 
lie.  that  the  vemh'e,  having  accepted  the 
goods,  as  and  for  the  goods  ronti  acted 
for,  and  without  offering  to  return  them, 
or  giving  notice  to  the  vendor,  to  come 
and  take  them  back,  might  hold  ami  re- 
tain the  goods,  without  [iiiying  any  thing 
for  them.  The  vendor  could  not  recover 
them  liack  in  an  acthm.  because  he  has  de- 
livered them  to  the  vendee,  in  pursuance 
of  a  contract,  as  his  own. 

It  is  asked,  then,  has  the  venilee  no  rem- 
edy against  the  vemlor,  after  clelivery,  i( 
the  vendee  fails  to  clerive  the  beiietits.  ex- 
pected and  stipulated  for  on  the  sale? 
Certainly  not.  If  he  has  been  deceived,  as 
to  the  title.  <iuality,  or  character  of  the 
thing  purchased,  he  may  rescind  the  con- 
tract, restore  or  tender  back  the  goods, 
and  recover  back  the  purchase  money;  or 
he  may  be   secnreil    by  a   warranty  on  the 

sale.     The   law the   sale   of    personal 

property,  implies  a  warran'y  of  good  title, 
so  that"  if  the  vendee  be  deprived  of  his 
purchase  by  a  paramount  title,  he  has  a 
remedy  on  his  warranty.  Or  he  may  take 
an  express  warranty,  as  to  the  (|uality, 
c<indition.  value,  age,  origin,  or  other  rlr- 
cuir.stances  respecting  the  thingsolil.  Hut 
a  warranty  is  a  separate,  Indepeiiileiit. 
c<illateral  stipulation,  on  the  part  of  the 
vemlor.  with  the  vendee. for  which  the  sale 
is  the  con.sideratlon.  for  the  existence  or 
truth  of  some  fact ,  relating  to  the  thing 
sold.  It  is  not  strictly  a  condition,  for 
it  neither  suspends  nor  deleats  tlie  com- 
pletion of  the  sale,  the  vesting  of  the  thing 
sold  in  the  vemlee,  nor  the  right  to  the 
puichase  money  in  the  vendor.  Ami.  not- 
withstanding such  warranty,  or  any 
breach  of  it,  the  vendi-o  m«y  hold  the 
goods,  and  have  a  remedy  for  hl8  tlain- 
ages  bv  action. 

Ilut.to  avoid  cin-iity  of  action,  a  war- 
ranty may    be  treated  as  a  condition  suli- 


252 


DORK  V.  FISHER. 


sequent,  at  the  election  of  the  vendee,  wlio  l 
may,  upon  a  hreacli  thereof,  rescinJ  tlie  I 
contract,  and  recover  hack  the  amount  i 
of  his  purchase  money,  as  in  case  of  fraud. 
But,  if  lie  does  this,  he  must  tirst  return  | 
the  property  sold,  or  do  every  thing  in  his  j 
power  requisite  to  a  complete  restoration  \ 
of  the  property  to  the  vendor,  and,  with-j 
out  this,  he  cannot  recover.  Conner  v.  1 
Hen<lprson,  1.5  Mass.  319;  Kimball  v.  C!un- 
ninftham,  4  Mass.  .502;  Perley  v.  Balch,  23 
Pick.  283.  Such  a  restoration  of  tliegoods, 
and  of  all  other  benefits  derived  from  the 
sale,  is  a  ilirect  condition,  wifhout  a  com- 
pliance with  which,  the  verulee  cannot  re- 
scind the  contract,  and  recover  l)a<-k  the 
money  or  other  property,  paid  or  delivered 
on  the  contract. 

But  his  other  remedy  is  by  an  action  ou 
the  warranty,  or  contract  of  the  vendor, 
on  which,  if  there  be  a  breach,  he  will  re- 
cover damages  to  the  amount  of  the  loss 
sustained  l)y  the  breach,  whatever  that 
may  be.  If  it  bo  a  warranty  of  the  quali- 
ty of  goods,  and  the  breach  alleged  is,  that 
the  goods  delivered  were  inferior  to  the 
goods  stipulated  for,  the  damage  will  or- 
dinarily be  the  difference  in  value  between 
the  one  and  the  other.  Such  an  action 
affirms  instead  of  disaffirming  theeontract 
of  sale,  leaves  the  property  in  the  vendee, 
and  gives  damages  for  the  breach  of  such 
separate,  collateral  contract  of  warranty. 

This  remedy  is  so  familiar,  that  it  scarce- 
ly requires  to  be  sujiporfed  and  explained 
by  authorities.  But  it  naturally  requires 
an  action  to  be  brousrht  by  the  vendee 
against  the  vendor,  whicli,  if  the  vendor 
Is  at  the  same  time  suing  for  the  price,  is  a 
cross  action. 

But  the  general  tendency  of  modern 
judicial  <lecisions  has  been,  to  avoid  circu- 
ity and  multiplicity  of  actions,  by  allow- 
ing matters  gr(>wing  out  of  the  same 
transaction  to  be  given  in  evidence  bj-  way 
of  defence,  instead  of  requiring  a  cross  ac- 
tion, when  it  can  be  done  without  a  viola- 
tion of  principle,  or  great  inconvenience 
in  practice. 

And  it  has  lately  been  decided,  in  this 
court,  after  consideration  and  upon  a  re- 
view of  the  authorities,  that,  when  a 
cross  action  will  lie  for  a  deceit  in   the  sale 


of  a  chattel,  the  deceit  may  be  given  in 
evidence  in  reduction  of  the  damages,  in  a 
suit  for  the  purchase  money  Harrington 
v.  Stratton,  22  Pick.  510.  And  the  princi- 
ples, which  govern  that  ease,  are  precise- 
ly applicable  to  the  casa,  where  a  cross  ac- 
tion will  lie  to  recover  damages  on  a 
breachof  warranty  on  a  sale,  and  thesame 
may  be  given  in  evidence,  and  a  like 
amount  deducted  from  the  purchase  mon- 
ey, in  assessing  damages  in  a  suit  by  the 
vendor  for  the  price.  Poulton  v.  Latti- 
more,  i>  B.  &  Cr.  250;  Perley  v.  Dalch,  23 
Pick.  283. 

It  appears  by  the  report  in  the  present 
case,  that  these  are  thepriucipleson  which 
the  trial  of  ihe  action  proceeded.  The 
plaintiff  must  first  have  [iroved  a  sale  and 
delivery  of  the  two  tubs  of  butter.  Some 
objection  was  made  to  the  jilaintiff's  ac- 
count book;  but  it  was  not  alluded  to  in 
the  argument.  Indeed,  the  other  proof 
tends  to  show,  that  the  defendant  agreed 
to  take  the  two  tubs  of  butter,  and  direct- 
ed the  plaintiff  to  leave  them  at  his  store, 
which  the  plaintiff  did  the  same  day.  No 
offer  was  made  afterwards  to  return  the 
butter.  No  notice  was  given  to  the  de- 
fendant to  take  it  away.  This  was  evi- 
dence, from  which  a  jury  might  well  infer 
a  sale  and  delivery.  The  only  way,  then, 
in  which  the  defendant  could  avail  himself 
of  proof  of  warranty  of  iiuality,  and  a 
breach  of  it,  was  in  obtaining  a  reduction 
of  damagfcs,  b.\  way  of  set-off,  in  nature 
of  a  cross  action,  and  as  a  sul)stitute 
cherefor.  Had  the  defendant  brought  his 
action,  it  is  quite  clear,  that  the  burden  of 
proof  would  have  been  on  him  to  prove 
such  warranty  and  breach,  and  the  dam-' 
aire  sustained  by  it.  The  burden  was  on 
him  ill  thesame  manner,  when  heresorted 
to  this  line  of  defence,  as  a  substitute  for  a 
cross  action.  We  are  of  opinion,  there- 
fore, that  the  direction  of  the  judge  was 
strictly  correct,  that  if  the  article  was  sold 
to  the  defendant  with  a  warranty  as  to 
its  quality,  or  with  a  representation 
amounting  to  a  warranty,  the  burden  of 
proof  was  on  the  defendant,  to  show  that 
it  was  not  e(iual  to  the  warranty. 

Exceptions  overruled  and  judgment  on 
the  verdict. 


DOWS  0.  XATIOXAL  EXCIIA\f;i:  I5AXK. 


DOWS  et  al.  v.  NATIONAL  KXCH.  BANK 
OF  MILWAUKEE. 

(91  U.  S.  618.) 

Supreme  Court  of  the  United  States.     Oct 
Term.  1S75. 

Error  to  the  circuit  court  of  tlie  L'nited 
StatCB  for  the  soutliurii  dintrlct  of  New 
Yorli. 

Action  of  trover  hy  the  Xationnl  Kx- 
chanire  littak  of  Miln-iiul<ee  for  the  nlleK<'<I 
conversion  by  Dowh  &  Co.  of  22,:!41  l)u.'ili- 
elH  of  wiieut.  Tlic  wlieat  waH  iiurciia.sed 
In  .Milwauliee,  Wis.,  hy  McLaren  .V;  Co., 
in  tlie  mouth  of  Sci)tenil)er.  IsCp'J.  upon 
onlerw  from  .Siiiitli  &  Co.  of  f)swe;co,  N. 
Y.,  wlio  requested  that  till!  rlraftH  on' ac- 
count tliereof  l)e  drawn  on  tlieni  thniUfili 
tlio  MercliantH'  lianli  of  Watertown,  N. 
Y.  McLaren  &  Co.  paid  for  the  wheat, 
nnil  Hliii)ped  it  on  tiiree  vesselH.  the  "Kate 
Kelly,"  "Grenada,  "  and  "Corwican,"  and 
received  from  the  captains  of  said  ves.sels 
triplicate  bills  of  lading  in  tlie  name  of  Mc- 
Laren &  Co.  as  shippers,  to  the  account  of 
\V.  (i.  Filch,  cashier,  care  .Merchants' 
linnk,  Watertown,  N.  Y.  McLaren  &  Co. 
presented  drafts  drawn  on  .Smith  &  Co., 
with  the  ori^final  hills  of  lading  attached 
thereto, to  theNalional  ExchanRel!aid<  of 
.Milwaukee. which  discounted  them,  placin>r 
the  proceeds  to  the  credit  of  McLaren  & 
Co.  Its  casliier  wrote  a  special  indorse- 
ment on  each  hill  of  lading.  The  indorse- 
ment on  that  of  tlie  "Grenada"  was  as 
follows: — 

"t)n  paytnent  of  two  drafts  drawn  by 
McLaren  &  Co.  on  .Smith  &  Co.,  Oswego, 
N.  \'..  to  my  order,  dated  Sept.  l.'i,  ISC.il,— 
one  draft  at  thirty  days' date  for  Sis,(l(io, 
and  the  other  at  forty-live  days'  date 
for  SfN.DiiO.  botli  drafts  heing  payable  at 
the  Merchants'  Hank,  Watertown,  N.  Y., 
—you  will  surrender  the  within-mentioned" 
wheat  to  Smith  *  Co.  or  order.  Should 
drafts  above  mentioned  not  be  promptly 
l)aid,  hold  the  wheat  for  mv  account, 
without  recourse.  W.  <i.  Fitch,  Cashier' 
Milwaukee.  V.n\\  September.  ISUO,  To 
Merchants'  Bank,  Watertown,  N.  Y." 

Similar  indorsements,  except  as  the 
anioiinls  and  dates  of  the  drafts,  were 
niade  on  the  bills  of  lading  of  the  "  Kate 
Kelly  "and  the  "Corsican."  .McLaren  & 
Co.  insured  the  cargoes  from  .Milwaukee 
to  Oswego,  and  transferred  the  insurance 
eertilicates  to  the  bank.  After  making 
the  indorsements  on  the  bills  of  lading, 
the  cashier  enclosed  the  drafts,  bills  of 
lading,  and  eertilicates  of  insurance,  to 
the  .Merchants'  liank,  Watertown,  N.  Y'.. 
with  the  following  letter  as  to  the  "  Kate 
Kelly:" 

"Sept.  2.     To  Cashier  Merchants'  Itank, 
Vyatertown,  N.  Y.:— I  hund  you  for  collec- 
tion   and    remittance   to    .Mercantile    Na- 
tional Hank,  .New  York,  for  my  credit,— 
McLiiren    &    Co.,    on    Smith    & 

Co..    OswoKO .$1,080  SI  exg. 

McLan-n  &  Co.,  Oct.  .". 7..'iOO  00    " 

_     ■'  "         Oct.  -20 7,.^00  m    '• 

B.  L    srhr.  "Kate  Kelly."  8,727  bushels  Auibor 

Mil.  wheat. 
B.   L.   schr.    "Kato   Kelly."   .->.r>27   20/GO  bush- 
els   No.    1,    Amber    Mil.    wheat,    consicnod    lo 


'      your  l.nnk  for  my  apcv.nnt.  and  to  bo  held  by 

ilrnft.s"     ""^^    '°    ^^    payment    of    the    above 

Insure<l  North-Western  Nat.  Ihh.  Co...   $.-(i«iO 

Nat.   Ins.    Co.,   Boston .'.'.     runt)) 

Aetna   Ins.   Co..   Hartf.,nl .Soikj 

lit'l'ulilic   Ihh.   Co ""jooo 

Security  Ing.  Co ...!.'."     '■{.(MX} 

"I  consign  this  wheat  to  vou,  to  be  held 
a8  per  indorsed  bill  of  lading,  and  sur- 
render  only  on  iiayment  of  the  draftH 
drawn  against  it,  hohling  yon  responHlhle 
for  the  same  in  caseof  non-payment  of  the 
drafts.  Will  you  receive  consignments 
in  this  way,  charging  reas.inablv  lor  the 
sjine?  Yours  truly,  W.  G.  Fitch.  Cash- 
ier. 

On  the  sixth  of  Seiitetnher.  1S»1«.  ,T  F 
Moffatt,  cashier  of  the  .Merchants"  Hank 
acknowledged  tlie  receipt  of  the  letter  and' 
Its  enclosures.  On  the  sth  of  that  month 
I- itch  addressed  niiolher  letter,  as  fol- 
lows:— 

"To  Merchants'  I$nnk  of  Watertown 
N.  Y.:— In  my  letter  of  the  2d.  I  renuested 
you  to  state  In  your  letter  whether  you 
would  hold  all  wheat  I  consl:;n  to  vou 
strictly  for  my  account,  holding  y'our 
bank  responsible  for  the  sale  keepini;  of 
the  properly  for  this  bank,  airl  h<duiiig 
such  firoperty  subject  to  mv  orders  in  all 
cases  where  the  drafts  made  against  It 
are  not  paid.  Your  reply  of  the  Uth  In- 
stant does  not  answer  my  eiKiuirv.  Will 
you  please  write  me  by  return  ninil.  ile- 
tining  your  positi<in?  We  have  adopted 
the  invariable  rule,  to  in  no  Instance  con- 
sign riroperty  only  on  condition  Muit  the 
consignee  acknowledges  himself  respon- 
sible for  it,  until  instructed  to  hand  over 
to  a  third  party.  Very  respectfully,  W. 
G.  Fitch.  Cashier." 

Moffatt  wrote  on  the  11th: 
"In  reply  to  yours  of  the  2d  instant.  I 
would  say  that  we  will  receive,  until  fur- 
ther notice,  such  consignments  ns  ytiu 
clio<ise  to  send  us,  hobling  us  responsible 
for  the  grain  in  case  of  non-pnymeiit  of 
drafts,  and  shall  charge  %  per  cent,  com- 
missions for  so  doing.  "On  the  1:1th  he 
acknowledged  the  receirit  of  Fitch's  letter 
of  the  Sth.  and  said:  "I  believe  your  en- 
(luiry  was  answered  in  mine  of  the  lllh 
instant."  .Similar  letters  were  written  to 
the  casliier  of  the  .Mendiants'  Itank,  en- 
closing the  flrafts,  bills  of  lailing.  anti  cer- 
tificates of  insurance,  of  the  cargoes  «if 
the  "Grenada"  and  "Corsican."  The 
cashier  of  the  Merchants'  Itank.  upon 
receipt  of  the  drafts  and  bill  of  lading  of 
the  "Kate  Kelly."  wrote  three  btters. — 
one  to  Smith  &  Co..  dated  Watertown,  N. 
Y'.,  Sept.  (i.  IsC.'.t.  as  follows:— 

"Please    find    enclo.sed    for    ncreptance, 
and  return  the  frdlowing:  to  wit:  — 
Mclxireu  &  Co.,  on  your  st.   ?4.0SO  81  and  vig. 

Oct.    ."i 7..".oo  00 

"        Oct.     20..  .      7.,">O0  00        " 


"Also  inspection  cerllHcate.  " 

Another  bearing  the  same  date,  ns  fol- 
lows:— 

"Proprietors  of  Corn  Exchange  Eleva- 
tor, Oswego.  N.  Y.:— Please  find  enclosed 
an  order  for  cargo  schooner  Knte  Kelly  ' 
for  S.72r  busliels  of  .Amber  Milwaukee 
wheat,  and  .">..'>27  20  (id  bushels  No.  1  .\iDber 
Milwaukee  wheat,  to  be  delivered  to  you; 


256 


DOWS  V.  NATIONAL  EXCHANGE  BANK. 


and  y<ui  will  please  hold  the  same  subject 
to,  and  deliver  tlie  grain  only  on  payment 
of,  the  following  drafts  ;  to  wit : — 

McLaren   &   Co.,  on  Smith 

&    Co.,    St $4,080  81  and  exg. 

McLaren  &  Co.,  Oct.  5 7.500  00 

Oct.  20 7,500  00 

And  the  third,  of  the  same  date,  as  fol- 
io w.s:— 

".Merchants'  Bank,  Watertown,  N.  Y., 
Sept.  (i,  1N6!).  Rotiert  Hayes,  Esq.,  Mas- 
ter schr.  'Kate  Kelly,'  Oswego,  N.  Y: — 
Please  deliver  to  the  Corn  E,\change  Ele- 
vator, Oswego.  N.  Y.,  .your  cargo,  8,727 
bushels  of  Amber  Milwaukee  wheat,  and 
5..i27  211/00  bushels  of  No.  1  Amber  Milwau- 
kee wheat,  consigned  to  us  by  W'.G.  Fitch, 
Es()..  cashier." 

Similar  letters  were  written  as  to  the 
cargoes  of  tlie"Grenada"  and  "Corsioan," 
e.xcept  that,  in  the  case  of  the  "Uorsican" 
the  letter  enclosing  the  order  to  the  mas- 
ter of  that  vessel  to  deliver  hei-  cargo  was 
addressed  to  ".Smith  &  ('o..  Proprietors 
Corn  E.\change  Elevator. "  Suittli  &  Co., 
on  receipt  of  the  letters,  paid  each  of  the 
sight  drafts,  and  returned  the  time  drafts, 
accepted,  to  the  Merchant.s"  Bank,  with- 
out objection.  Thesight drafts  vr ere  paid, 
and  the  time  drafts  accepted,  several  days 
befoie  the  arrival  of  the  cargoes  at  Os- 
wego. Mcl/aren&  Co. forwarded  to  Smith 
&  Co.  invoices  of  the  purcliases,  with 
statement  of  account  for  disbursements 
and  comniissiofis.  The  invoice  of  the 
"Kate  Kelly"  is  headed,  "Account  pur- 
chase of  14,250  20/()0  bushels  of  wheat, 
bought  for  account,  and  b.v  order  of 
.Smith  &  Co.,  Oswego,  N.  Y.,  through  .Mc- 
Laren &  Co."  Th(>se  of  the  "Grenada" 
and  of  the  "Corsican"  differ  only  in  the 
number  of  bushels.  No  bills  of  lading  were 
sent  to  Smith  &  Co.  The  "Kate  Kelly" 
arrived  in  Oswego  Sept.  Ifi,  ISW).  Her 
cargo  was  discharged  into  the  Corn  Ex- 
change Elevator  anil  a  bill  of  lading, 
dated  Sept.  IS,  1S6'.),  signed  by  G.  A.  Ben- 
nett, was  delivered  to  Smith  «&  Co.  The 
wheat  was  shipped  by  canal  boat  and 
arrived  in  New  York  October  !).  ISG'J. 
Smith  &  Co.  paid  the  time  draft  of  $7,.'.()U, 
drawn  at  thirty  days.  The  time  draft  of 
.f7,.'>i)0,  drawn  at  forty  five  days,  was  un- 
paid at  the  date  of  this  shipment.  The 
"(iienaila"  arrived  on  the  twenty-fourth 
day  of  September,  1S60.  Her  cargo  was 
shipped  by  canal  l)oat  by  Smith  &  Co., 
and  a  bill  of  lading  of  that  date,  signed 
liy  G.  A.  Bennett,  was  delivered  to  them. 
This  canal  boat  arrived  in  New  York, 
Oct.  27,  ISI".'.).  The  two  time  drafts 
drawn  on  the  cargo  of  the  "Grenada" 
were  unpaid  at  the  date  of  this  ship- 
ment. The  "Corsican"  arrived  on  the  Sth 
October,  ISdO;  and  on  thesame  day  Smith 
&  Co.  ship[)ed  by  the  canal  boats.  These 
canal  Ijoats  arrived  in  New  York  on  the 
4th  November,  ISdO.  The  tlmo  drafts 
drawn  on  the  cargo  of  the  "Corsican" 
were  not  paid  at  the  time  of  these  ship- 
ments. The  drawees  of  the  drafts  were 
the  proprietors  of  the  Corn  Exchange  Ele- 
vator. The  captains  of  the  vessels,  on 
their  arrival  at  Oswego,  called  at  the  of- 
fice of  the  Corn  K.xchange  Elevator  and 
received  from  Smith  &  Co.,  before   deliver- 


ing their  cai-goos,  the  orders  in  the  letters 
of  the  cashier  of  the  Merchants'  Bank  to 
the  "Pnjprietors  Corn  Exchange  Ele- 
vator," and  to  "Smith  &  Co.,  Proprietors 
Corn  Exchange  Elevator".  The  latter 
paid  the  freight  on  the  cargoes,  and  re- 
ceipted therefor  on  the  back  of  the  bills  of 
lading  retained  by  the  captains.  The 
shipments  by  Smith  &  Co.  were  maile  with- 
out the  knowledge  or  consent  of  the  of- 
ficers of  the  Merchants'  Bank.  There  was 
no  mixture  in  the  elevator  of  the  cargoes 
of  the  "Kate  Kelly",  "(Jrenada",  or  "Cor- 
sican". Smith  &  Co.,  on  receiving  the 
canal  boat  bills  of  lading,  sent  thesame 
witli  drafts  attached,  through  banks  in 
New  York  city,  to  Dows  &  Co.,  defend- 
ants. They  paid  the  drafts,  and  received 
the  bills  of  lading.  All  of  the  time  drafts 
drawn  by  McLaren  &  Co.  (m  Smith  &  Co. 
(except  the  thirty  day  draft  on  the  cargo 
of  the  "Kate  Kelly"),  being  unpaid,  were, 
with  the  original  bills  of  lulling  and  cer- 
tificates of  insurance,  returned  by  the 
Merchants'  Bank  to  the  Milwaukee  Bank. 
The  iatter  having  been  advised  in  October 
that  the  wheat  had  liecn  shipped  by 
Smith  &  Co.,  Wilham  P.  McLaren,  a  mem- 
ber of  the  firm  of  McLaren  &  Co.,  went  to 
Oswego  to  look  after  it.  He  was  there 
from  about  the  2(lth  to  the  2.")th  of  that 
month,  and,  on  examination,  found  no 
wheat  in  the  elevator.  Having  ascer- 
tained on  ll'.e  22d  that  portions  of  the  (car- 
goes had  been  shipped  to  Dows  &  Co.,  a 
telegram  was  sent  to  and  received  by 
them  on  that  day,  notifying  them  that 
the  wheat  shipped  was  the  property  of 
the  National  Exchange  Bank  of  Milwau- 
kee. Thefollowing  day,  i)arties  interested 
in  the  wheat  called  on  Dows  &  Co.,  who 
agreed,  that,  if  no  attempt  was  made  to 
stop  the  wheat  on  the  canal,  it  shoidil, 
on  its  arrival  in  New  York,  be  kept  sepa- 
rate; that  the  Milwaukee  Bank  should 
be  notified  of  its  arrival;  and  that  th?y 
(Dows  &  Co.)  would  identify  it  as  the 
wheat  coming  out  of  the  said  canal 
boats,  and  would  require  proof  of  the 
identity  of  the  wheat  in  the  canal  boats 
at  Oswego.  On  the  arrival  of  the  wheat, 
a  formal  demand  in  writing  therefor  was 
made  on  Dows  &  Co.  b.v  the  Milwaukee 
bank.  They  refused  to  deliver  it  unless 
they  were  reimbursed  the  amount  of  their 
advances  to  Smith  &  ("o.  and  freight  and 
charges,  and  unless  the  Milwaukee  bank 
would  take  careof  an  ordergiven  bySn)ith 
&  Co.  to  Norris  WInslow  on  them  for  any 
margins  in  their  hands  due  Smith  &  Co. 

The  jnrv  found  a  verdict  in  favor  of  the 
plaintiff  f;)r  $31,111.51. 

Mr.  C.  Van  Santvoord  for  plaintiffs  in 
error.  Mr.  H.  M.  Finch  for  defendant  in 
error. 

Mr.  Justice  STRONG  delivered  the  opin- 
ion of  the  court. 

The  verdict  of  tlie  jury  having  estab- 
lished that  the  wheat  came  to  the  pos- 
session of  the  defendants  below  (now 
plaintiffs  in  error),  and  that  there  was  a 
conversion,  there  is  reall.v  no  controversy 
respectinir  any  other  fact  in  this  case  than 
whether  the  ownership  of  the  plaintiffs 
had    been   divested   before  the  conversion. 


I 


DOWS  0.  NATIONAL  EXCHANGE  BANK. 


257 


Tlie  evklencp  Iicaiing  upon  thu  transiniH- 
siuii  of  the  title  whs  cotitaiiKMl  iiiiiinly  in 
written  inHtruinentH,  the  Ipk'iI  effect  of 
which  was  for  the  court;  iind,  so  far  as 
there  was  ekMileiice  outside  of  tliese  instru- 
ments, it  was  either  uncontradicted,  or  it 
had  MO  licarint;  upon  tlie  construction  to 
he  uiven  to  tlieni.  We  liave,  therefore,  on- 
ly to  iiKiuire  to  wlioin  the  vvlieat  helonge'l 
wluMi  it  catne  to  tlie  hands  of  llie  defenil- 
ants,  aiKl  vvlien  they  refused  to  surrender 
it  at  tlie  demand  of  tht!  plaintiff. 

It  is  not  open  to  (inestion  that  .McLaren 
&  Co.,  havin;.;  piircluised  it  at  .Milwaukee 
and  paid  for  it  'vith  their  own  money,  he- 
came  its  owners.  Thoiiuli  they  ha(i  re- 
ceived orders  from  Smith  &  Co.  to  huj 
wheat  for  them,  and  to  ship  it,  they  had 
not  been  supplicil  with  funds  for  the  pur 
pose,  nor  hail  tliey  assumed  to  contract 
with  those  from  whom  they  purchased 
on  behalf  <if  their  correspondents.  Tlic.v 
were  uniler  no  obligation  to  ;{ive  up  their 
title  or  the  possessitm  on  any  terms  othei' 
than  such  as  they  might  ilictate.  If,  after 
their  purchase,  they  had  sold  the  wheat 
to  any  iierson  living  in  .Mil  waukee  or  else- 
where, other  than  .Smith  &  Co.,  no  doubt 
their  vendee  would  ha ve  succeeded  to  the 
ownership.  Nothing  in  any  agenc.v  for 
Smith  &  Co.  would  have  prevented  it. 
Tliis  we  do  not  understan<l  to  be  contro- 
verted. Having,  then,  aci|iiired  the  abso- 
lute ownership,  .McLaren  &  Co.  had  the 
complete  i)ower  of  disposition  :  ami  there 
is  no  pretence  that  they  dii'ectly  trans- 
mitted tlieii-  ownership  to  Smith  .V:  Co. 
They  doubtless  expecteil  that  tirm  to  be- 
come purchasers  from  tliem.  They  bought 
from  their  vendors  with  that  expectation. 
Accordingly,  they  ilrew  drafts  for  the 
Iirice;  but  they  never  agreed  to  deliver 
the  wheat  to  the  drawees,  unless  upon  the 
condition  that  the  drafts  should  be  ac- 
cepted and  )iaid.  They  shipped  it:  but 
they  did  not  consign  it  to  Smith  ic  Co., 
and  they  sent  to  that  finii  no  bills  of  lad- 
ing: on  the  contrary,  they  consiirned  the 
wheat  to  the  cashier  of  the  .Milwaukee 
bnnk,  and  handed  over  to  that  bank  the 
bills  of  lailiag  as  a  security  for  the  drafts 
drawn  against  it,— drafts  which  the  bank 
inircliased.  It  is  true,  they  sent  invoices. 
Tilat,  however,  is  of  no  signllicanoe  by  it- 
self, 'i'he  iiiisition  taken  on  behalf  of  the 
defendants,  that  the  transmission  of  the 
invoices  |)assed  the  property  in  the  wheat 
without  tile  acceptance  and  payment  of 
the  drafts  dr.iwn  against  it,  is  utterly  iin- 
terialile.  .An  invoice  is  not  n  bill  of  sale, 
nor  is  it  eviilence  of  a  wale.  It  is  a  mere 
detailed  statement  of  the  nature,  (jiianti- 
ty,  anil  cost  or  price  of  the  thingsinvoiced. 
and  it  is  as  ap|iropriate  to  a  bailment  as 
it  is  to  a  s;ile.  It  does  not  of  itself  neces- 
sarily indicate  to  whom  the  things  are 
sent,  or  even  that  they  have  been  sent  at 
all.  Hence,  standing  alone,  It  is  never  re- 
garded as  evidence  of  title.  It  seems  un- 
necessary to  refer  to  authorities  to  sus- 
tain this  positiun.  Heference  may,  how- 
ever, be  made  to  Sheidierd  v.  Harrison, 
Law  I{e[).  .">  H.  L.  llti.  and  Xewcomb  v. 
l?o8ton  &  Lowell  U.  U.  Co.,  ll.">  Mass. 
T-M.  In  these  and  in  many  other  cases 
it  has  been  regarded  as  of  no  import- 
ance   that    an    invoice   was    sent   by  tlie 

LAW  SALES— 1 1 


shipper  to  the  drawee  of  the  drafts  drawn 
against  the  shipment,  even  when  the 
goods  were  described  as  bought  and 
shipped  on  account  of  and  at  Hie  risk  of 
the  lira  wee. 

It  follows  that  McLaren  &  Co.  remained 
the  owners  of  the  wheat,  notwithstand- 
ing their  transmission  of  the  Invoices  to 
Smith  it  Co.  .\s  owners,  then,  they  had 
a  right  to  transfer  it  to  the  plaintiff  as  a 
security  for  the  accepta  nee  nnd  payment 
of  their  ilralts  diawn  against  It."  ThlH 
they  did  by  taking  bills  of  biding  delivera- 
ble t(i  the  cashier  of  the  [ila  in  tiff,  and  hanil- 
ing  them  over  with  Ihe  drafts  when  the 
latter  were  discounteil.  These  lulls  of  lad- 
ing unexpliilaed  are  aiinost  conclusive 
proof  of  an  intention  to  reserve  to  the 
shipper  the  jus  disponenili.  and  prevent  the 
property  in  the  wheat  from  iiassing  to 
the  drawees  of  the  drafts.  Such  in  the 
rule  of  interpretation  as  stated  In  Ilenja- 
min  on  Sales,  :;iir,:  and  in  support  of  it  he 
cites  numerous  authorities,  to  only  one 
of  wliiih  we  make  special  reference, — .leak, 
yns  v.  Brown,  14  (.y  H.  4!Mi.  There  it  ap- 
peared that  the  plaintiff  was  a  conindH- 
siou  merchant,  living  in  London,  and  em- 
ploying Klingender  &  (Jo.  as  his  agents 
at  New  Orleans.  The  agents  iiurchased 
for  the  plaintiff  a  cargo  of  corn,  payingfor 
it  with  their  own  money.  They  then 
drew  upon  him  at  thirty  days'  slcht, stat- 
ing in  the  body  of  the  drafts  that  they 
were  to  be  placed  to  the  account  of  the 
corn.  These  drafts  the.v  sold,  handing 
over  to  the  purchaser  with  them  the  bills 
of  lading,  which  were  made  di  liverable  to 
the  order  of  Klingender  &  Co..  I  he  agents  : 
and  they  sent  invoices  and  a  letter  of  ad- 
vice to  the  plaintiff,  informini:  him  that 
the  cargo  was  bought  and  shipped  on  his 
account.  On  this  state  of  facts,  the  court 
ruled  that  the  propert.v  did  not  pass  to 
the  plaintiff :  that  the  taking  of  a  bill  of 
lading  by  Klingender  &  Co.,  deliveratile 
to  their  own  order,  was  nearly  conclusive 
evidence  that  they  did  not  intend  to  pass 
the  property  in  the  corn:  and  that,  by  in- 
dorsing the  liills  of  lading  to  the  liuyer  of 
the  bills  of  exchange,  they  had  conveyed 
to  him  a  special  property  in  the  cargo,  so 
that  the  plaintiffs  riirht  to  the  corn  could 
notarise  until  the  bills  of  exchange  wen* 
paid  by  him.  That  such  Is  the  letral  effect 
of  a  bill  of  lading  taken  deliveralde  to  the 
shipper's  own  Older,  that  It  Is  inconsist- 
ent with  an  intention  to  pass  the  owner- 
ship of  the  cargo  to  the  person  on  whose 
account  it  may  have  been  puivhased.  even 
when  the  shipment  has  been  mttde  in  Ihe 
vessel  of  the  drawee  of  the  drafts  against 
the  cargo,  has  been  repeatedly  decided. 
Turner  v.  The  Trustees  of  the  Liverpool 
Hocks,  fi  Kxch,,">4:!:  Schotsmansv.  Kail  way- 
Co.,  LawUeii.,  2  Ch.  .\p.  :!:ii".:  Kllershaw  v. 
Magaiac,  (i  Kxch.  'uO.  In  the  present  case 
the  wheat  was  not  shipped  on  the  vessels 
of  Smith  &  Co..  and  thelillls  otiadlng  stip- 
ulated for  deliveries  to  the  cashier  of  the 
Milwaukee  bank.  Wlien,  therefori".  the 
drafts  against  the  wheat  were  discounted 
bv  that  bank,  and  tne  bills  of  lading  were 
hjinded  over  with  the  drafts  as  se»-iirlty. 
the  bank  became  the  owner  of  the  «heat, 
and  had  a  complete  right  to  maintain  It 
until    payment.    The    ownership  ot    Mc- 


258 


DOWS  V.  NATIONAL  EXCHANGE  BANK. 


Ijaren  &  Co.  was  transmitted  to  it,  and  it 
succeeded  to  tlieir  jiower  of  (lisposition. 
That  the  bank  never  eon.sented  to  |)art 
with  its  ownersliip  thus  acquired,  so  Ions 
as  the  drafts  it  had  (iiscounted  remained 
unpaid,  is  rendered  certain  by  the  uncon- 
tradicted written  evidence.  It  .■lent  the 
drafts,  with  tlie  Ijills  of  lading  attaclied,  to 
the  Merchants'  Baid<,  Watertown,  accom- 
panied with  tlietnost  positive  instructions, 
toy  letter  and  by  indorsement  on  the  bills, 
to  hold  the  wheat  until  the  drafts  were 
paid;  and  when,  sulisequently,  the  Mer- 
■chants'  Bank  sent  orders  to  the  masters 
•of  the  carryins  vessels  to  deliver  it  to  tlie 
"Corn  KxclianKe  Elevator,  Oswes(^,  N.  Y.,"' 
they  accompanied  the  orders  witli  letters 
to  Smith  &  C'o..  the  proprietors  of  the  ele- 
vator, containing  clear  instructions  to 
hold  the  arain,  and  "deliver"  it  only  on 
payment  of  the  drafts.  To  these  instruc- 
tions Smith  &  Co.  made  no  objection. 
Now,  as  it  is  certain  that  whether  the 
property  in  the  wheat  passed  to  Smith  & 
,<Jo.  or  not  depends  upon  the  answer  which 
.must  be  «iven  to  the  question  whether  it 
Avas  intended  by  McLaren  &  Co.,  or  by 
the  Milwaukee  bunk,  their  successors  in 
ownership,  that  it  should  pass  before  pay- 
ment of  the  drafts,  where  can  there  be 
any  room  for  donl)t?  What  is  there  upon 
wliich  to  l)ase  an  inference  that  it  was  in- 
tended Smith  &  Co.  should  become  Imme- 
diate owners  of  the  wheat,  and  be  clotl)ed 
with  a  right  to  dispose  of  it  at  once? 
Such  an  inference  is  forbidden,  as  we  have 
already  said,  by  the  bills  of  lading  made 
deliverable  to  vV.  G.  Fitch,  cashier  of  the 
Milwaukee  bank;  and  it  is  inadmissible, 
in  view  of  the  e.xpress  orders  given  by 
that  bank  to  their  special  agents,  the  Mer- 
■ohants'  Bank  at  Watertown,  directing 
them  to  li(dd  the  wheatsubjectto  tlie  pay- 
ment of  the  drafts  drawn  against  it.  No 
intent  to  vest  immediate  ownership  in  the 
drawees  of  the  drafts  can  be  implied  in  the 
face  of  these  express  arrangements  and 
positive  orders  to  the  contrary.  It  is  true 
that  Smith  &  Co.  were  ti'e  proprietors 
of  the  Corn  Exchange  Elevator,  and  that 
the  wheat  was  handed  over  to  the  "cus- 
tody of  the  elevator"  at  the  direction  of 
the  Merchants'  Bank;  but  it  cannot  he 
claimed  that  that  was  a  delivery  to  the 
drawees  under  and  in  pursuance  of  their 
contract  to  purchase.  The  .Merchants' 
Bank,  having  been  only  special  agents  of 
the  owners,  had  no  power  to  make  such 
«  delivery  as  would  divest  the  ownership 
of  their  i)rincipals.  Stollenwerck  et  al.  v. 
Thacher,  11,T  Mass.  124.  And  they  made 
'.no  attempt  to  divest  that  ownership. 
They  guardedly  retained  the  jus  d:s|)oneii- 
'<Ji.  Concurrently  with  their  directions 
that  the  %vheat  should  be  delivered  to  the 
■elevator,  in  the  very  orders  for  the  deliv- 
ery, they  stated  that  the  cargoes  were  for 
the  account  of  W.  G.  Fitch,  cashier,  and 
were  to  be  held  subject  to  their  order. 
By  accompanying  letters  to  the  proprie- 
tors of  the  elevator,  they  stated  that  the 
cargoes  were  delivered  to  them  "to  be  held 
subject  to  and  delivered  only  on  payment 
of  the  drafts  drawn  by  .McLaren  .SrCo." 
All  this  contemplated  a  subsequent  deliv- 
ery,— a  delivery  after  the  receipt  of  the 
grain  in  the  elevator,  and  when  the  drafts 


should  be  paid.  It  negatives  directly  the 
possibility  that  the  delivery  into  the  ele- 
vator was  intended  as  a  conaunimation 
of  the  purchase,  or  as  giving  title  to  the 
purchasers.  It  was  a  clear  case  of  bail- 
ment, utterly  inconsistent  with  the  idea  of 
ownership  in  the  bailees.  A  man  cannot 
hold  as  bailee  for  himself.  By  the  act  of 
accepting  goods  in  bailment,  he  acknowl- 
edges a  right  or  title  in  the  bailor.  When, 
therefore,  as  was  said  in  the  court  below, 
"the  proprietors  of  the  Corn  Exchange  El- 
evator, or  Smith  &  Co.,  received  the  wheat 
under  the  Instructions  of  the  Merchants' 
Bank,  they  received  it  with  the  knowledge 
that  the  delivery  to  them  was  not  abso- 
lute; that  it  was  not  |ilaced  in  their 
hanils  as  owners,  and  that  they  were  not 
thereby  to  acquire  title."  They  were  in- 
foruieil  that  the  holdei-s  of  the  tlrafts,  and 
bills  of  lading,  had  no  intention  to  let  go 
their  ownei-sliip  so  long  as  the  drafts  re- 
mained unpaid.  The  possession  they  had, 
therefore,  was  not  their  possession.  It  be- 
longed to  their  bailors;  and  they  wei-e 
mere  warelK)Usemen,  and  not  vendees. 

We  agree,  that  where  a  bill  of  lading 
has  been  taken  containing  a  stipulation 
that  the  goods  shipped  shall  be  delivered 
to  the  order  of  the  shipi)er,  or  to  some 
person  designated  by  him  other  than  the 
one  on  whose  account  they  have  been 
shipped,  the  inference  that  it  was  not  in- 
tencied  the  property  in  the  goods  should 
pass,  except  by  subsequent  order  of  the 
person  holding  the  bill,  may  be  rei)utted. 
though  it  is  held  to  be  almost  conclusi\e: 
and  we  agree,  that  where  there  are  cir- 
cumstances pointing  both  ways,  some  in- 
dicating an  intent  to  pass  the  ownership 
immediately,  notwithstanding  the  bill  of 
lading,  in  other  words,  where  th^re  is  any 
thing  to  rebut  the  effect  of  the  bill,  it  be- 
comes a  question  for  the  jury,  whetlier  the 
property  has  passed.  Such  was  the  case 
of  Ogg  v.  Shuter,  10  Law  Rep.  C.  P.  1,59. 
There  the  ordinary  effect  of  a  bill  of  lading 
deli  vera  l)le  to  the  shipper's  order  was  held 
to  be  rebutted  by  the  court  sitting  with 
power  to  draw  inferences  of  fact.  Tlie 
delivery  to  the  carrier  was  "free  on 
board."  and  the  bill  of  lading  was  sent  to 
the  consignor's  aLjent.  The  goods  were 
also  delivered  into  the  purchaser's  bags, 
and  there  was  a  part  payment.  But  in 
this  case  there  are  no  circumstances  to  re- 
but the  intent  to  retain  ownership  exhib- 
ited in  the  liills  of  lading,  and  confirmed 
throughout  bv  the  indorsements  on  the 
bills,  tind  by  the  written  instructions  to 
Mold  the  wheat  till  payment  of  the  drafts. 
Nothing  in  the  "vidence  received  or  offered 
tended  to  show  any  other  intent.  Hence 
there  was  no  necessity  of  submitting  to 
the  jury  the  question,  whether  there  was 
a  change  of  ownership.  That  would  have 
been  an  invitation  to  find  a  fact  of  which 
there  was  noevidence.  Theeircumstances 
as  relied  upon  by  the  plaintiffs  in  error, 
as  tending  to  show  tliat  the  property 
vested  in  Smith  <&,  Co.,  cannot  have  thesig- 
niticance  attributed  to  them. 

It  is  certainly  immaterial tbatthe  wheat 
was  consigned  to  W.  G.  Fitch,  cashier, 
care  of  the  Merchants'  Bank,  Watertown, 
and  that  it  was  thus  consigned  at  the  re- 
quest of  Smith  &  Co.,  made  to  McLaren  & 


DOWS  V.  NATIONAL  EXCHANGE  BANK. 


259 


€0.  llacl  It  bf>en  consigneil  rlirectlj-  to  ' 
that  bnuk,  and  had  there  heen  no  reserva- 
tiori  of  the  jus  (lispoiiendi  acconiijanyinj; 
the  cotiHignmcnt.  the  case  mit^ht  have 
been  different.  Thtn  au  intent  to  deliver 
to  the  purchaserH  niisht  pt)Hisil)l.v  liave 
been  prcHumel;  bnt,  as  tlie  caBe  waw.  no  I 
room  was  left  for  such  a  presuiniition.  I 
Tlie  e.xpress  direction  to  hold  the  wheat 
for  the  payment  of  the  drafts,  and  to  de- 
liver it  only  on  [)aymcnt,  removes  the 
possibility  of  any  preKiinie<l  intent  to  de- 
liver it  while  the  drafts  remained  unpaid.  ' 
A  shipment  on  the  purchaser's  own  vessel 
Is  ordinarily  held  to  [jass  the  projierty  to 
the  purchaser  but  not  so  if  the  bill  of  lad- 
inK  exhibits  a  con ti-ary  intent. — if  there- 
by the  .shipper  reserves  to  liitiiseif  or  to  his 
assigns  the  dominion  over  the  goculs 
ship])ed.  Turner  v.  The  Trustees  of  the 
Liverpool  DocUs,  supra.  There  are  many 
such  decisions.  A  stronir  caKc  may  be 
found  in  the  court  of  ()ueen'H  bench,  derid- 
ed in  1S40.  It  is  Mitehel  v.  ICile.  11  Ad. 
&  K.  sss.  A  Jamaica  planter,  beins  the 
owner  of  sugars,  and  imlelited  to  the 
defendant,  residing  in  London,  for  more 
than  their  value, shipped  them  iit.Iamaica, 
on  the  4th  of  April,  on  11  ship  belonging 
to  the  defendant  which  was  in  the  habit 
of  cati-yinK  supplies  to  .laniaica  to  the 
owner  «)f  the  sugars,  and  others,  and 
taking  back  consifrniiients  from  him  and  , 
others.  On  the  same  day  he  took  a  l)ilL 
of  lading  by  which  the  goods  were  stipu- 
lated to  be  delivered  to  the  defen<lant  at 
Lontlon,  he  paying  freiglit.  Two  days 
aft<'rwards  (April  (i)  the  sliipper  made  an  I 
indorsement  on  the  bill  that  the  sugars  | 
were  to  be  delivered  to  the  ilefendant  only  j 
on  condition  of  his  giving  security  for  cer-  | 
tain  payments,  but  otherwise  to  the  plain-  i 
tiff's  agent.  He  also  drew  drafts  on  the  j 
f'efendant.  At  the  same  time  he  indorsed 
the  bill  of  lading,  and  delivered  it  to  the 
plaintiff,  to  whom  lie  was  indebted.  The 
l)ill  was  never  in  the  defendant's  hands. 
The  sugars  arrived  in  London;  and  tin- 
defendant  paid  the  drafts  drawn  by  the 
shipper,  but  did  not  com|)ly  with  the  con- 
ditions of  the  indorsement  cf  .\pril  r>.  On 
this  state  of  facts,  it  w;is  held  by  thecourt 
that  the  plaintiff  was  entitled  to  the  su- 
gars; that  the  shipiier  had  not  parted 
with  the  |)r«)perty  by  delivering  it  on 
board  the  defendant's  ship,  employed  as 
it  was.  nor  by  accepting  tlie  liill  of  lading 
as  drawn  on  the  4tli  of  April ;  and  that  he 
was  en  t  it  led  to  change  the  destination  of 
the  sugars  till  he  had  delivered  them  or  the 
bill.  In  the  case  now  in  hand,  there  never 
was  an  instant,  after  the  iinrcliase  of  the 
wheat  by  .McLaren  &  <'o.,  when  there  was 
not  an  express  reservation  of  the  right  to  '• 
withhold  the  delivery  from  Smith  &  Co., 
and  also  an  avowed  purpose  to  withhold 
it  until  the 'Iraftsshould  bepaid.  Consent 
to  consign  the  wheat  to  \V.  (!.  I'itch, 
cashier,  careof  .Nierrhants'  Flank,  amounts, 
therefore,  to  no  evidence  of  consent  that  it 
should  pass  into  the  control  and  owner- 
ship of  til"  purchasers. 

It  has  been  argued  on  behalf  of  the  plain- 
tiffs in  error  that  the  corres(iondence  be- 
tween .Smith  &  Co.  and  .\;rl.,nren  &  Co. 
shows  that  the  wheat  was  wanted  by  the 
former   to   supply  their   immediate   need; 


and  that,  therefore,  it  was  a  legitlmnte  In- 
ference that  both  parties  to  the  corres- 
pondence intended  an  immediate  delivery. 
If  this  were  so,  it  was  still  In  the  power 
of  the  vendors  to  change  the  destination 
of  the  property  until  delivt-ry  was  actual- 
ly, or  at  least  symlioliciilly,  made;  and 
that  the  intention,  if  any  ever  existed, 
was  never  carried  out,  thebills  of  bHling 
prove.  It  may  be  that  .Smith  &  Co.  ex- 
pected to  secure  early  possession  of  the 
wheat  by  ol>taiiiing  discounts  from  the 
U'atertown  t)ank,  and  then  by  taking  up 
the  drafts.  If  so,  it  would  arciiint  for 
their  lerjuest  that  the  drafts  and  bills  of 
lading  might  be  si'nt  through  that  bank; 
but  that  has  no  tendency  to  show  an  as- 
sent by  either  .McLaren  &  Co.  or  the  .Mil- 
waukee bank  to  an  unconilitionaldeliv^ry 
of  the  proiiertv  before  pavmenc  of  the 
drafts. 

Nor  does  the  fact  that  any  engagement 
to  liidd  themselves  responsible  for  the  safe 
keeping  of  the  wheat  for  the  plaintiff,  and 
subject  to  its  orders  until  the  drnlttt 
drawn  against  it  sliould  be  paid,  was  ex- 
acted from  the  Watertown  bank,  have 
any  tendency  to  prove  such  an  assent. 
This  was  an  additional  protection  to  tlie 
continued  ownership  of  the  plaintiff;  and 
the  words  of  the  engagement  plainly  neg- 
ative any  cimsent  to  a  divestiture  of  that 
ownershi[). 

Without  referenee,  therefore,  to  the  tes- 
tiniony  of  .McLaren, —  which  was.  In  snii- 
stance,  that,  before  the  shipments,  the 
agent  of  .Smith  &  Co.  wa.s  inlormed,  that 
wliile  the  shipping  linn  would  agree  to 
send  their  time  drafts  through  any  bank 
he  might  designate,  anil  consign  the  prop- 
erty to  an}'  responsllde  bank  .Smith  &  Co. 
might  designate,  they  would  adhere  to 
their  jxisitive  business  rule  In  such  cases, 
ard  on  no  account  consent  that  any  prop- 
erty so  shipped  sliould  pass  out  of  the 
control  of  the  banks  in  whose  care  It  had 
been  placed  until  all  drafts  made  against 
it  had  been  paid, — without  reference  to  this, 
we  think  it  clear  th;it  the  ownershipof  the 
wheat. for  the  conversion  of  whi<-h  the  de- 
fendants were  sued,  never  vested  in  Smith 
&  Co..  never  passed  out  of  the  plaintiff. 

This  is  a  conclusion  iicessarily  dr»wn 
from  the  written  and  uncontradicted  evi- 
dence; and  tliere  is  nothing  in  any  evi- 
dence received,  or  offered  by  the  defendants 
and  overruled  by  thecourt,  which  hasany 
tendency  to  resist  the  conclusion.  It  Im 
unnecessary,  therefore,  to  examine  in  de- 
tail the  nnnieroiis  assignnn-nts  of  error  In 
the  admission  and  rejection  of  e\  idcnce. 
None  of  the  rulings  have  injured  the  de- 
fendants. 

If,  then,  the  Kxchange  Hank  of  Mil- 
waukee was  the  owner  of  the  wheat  when 
Smith  &  Co  undertook  t<.  ship  it  to  the 
defendants,  and  when  the  defendants 
ri'ceived  it  and  converted  it  to  their 
use.  the  right  of  the  bunk  to  n^cover  In 
this  action  is  incnnfrovertllde.  Smith  & 
Co.  were  incapable  of  divesting  that  own- 
ership The  defendants  could  nc<inlr«»  no 
title,  or  even  lien,  from  n  tortious  poR- 
sessor.  However  innoi-ent  they  may  have 
been  (and  they  were  undoiilitedly  Inno- 
cent of  any  attempt  to  do  wrongl.  they 
could  not    obtain  ownership  of  the  wheat 


260 


DOWS  V.  NATIONAL  EXCHANGE  BANK. 


from  any  otlier  than  tlie  owner.  The 
owner  of  personal  property  cannot  be  di- 
vested of  liis  ownership  witiiout  Ilia  con- 
Bent,  except  by  process  of  law.  It  is  not 
clainicij,  and  it  conld  not  be,  tliat  the  de- 
fendants wore  deceived  or  misled  by  any 
act  of  the  plaintiff.  They  are  the  victims 
of  a  gross  frand  perpetrated  by  Smith  & 
Co.;  and,  however  unfortnnate  their  case 
may  be,  tliey  cannot   be  relieved   by  cast- 


iuff  the  loss  upon  the  plaintiff,  who  is  at 
least  equally  innocent  with  themselves, 
and  who  has  used  the  extremest  precau- 
tion to  protect  its  title. 

It  is  sufficient  to  add,  that,  in  our  opin- 
ion, there  is  no  just  reason  for  complaint 
against  the  instruction  jj;iven  by  the  cir- 
cuit judj^e  to  the  jury,  and  his  rulings  up- 
on the  sul)ject  of  damages  and  interest. 

Judgment  affirmed. 


I 


I 


DRAKE,  EX  PARTE. 


263 


Ex  parte  DKAlvli.. 

In  re  W  AUK. 

(5  Cli.  Uiv.  S(iO.) 

Court  of  Aiipeal.    May  10,  1877. 

This  was  un  jippeal  fnim  a  declBJou  of 
Mr.  KeKiNtrar  P«p.VK,  Hitting  aH  chief 
juilnf  in  itankruptr-y. 

Ill  Martli,  Int.'),  JaiiiPM  Ware,  a  earner 
anil  eaiiiiiiii,  liirpd  a  urey  ni.nre  of  Haiiiel 
Drake.  He  iiculeeted  to  return  the  mare 
when  reiiiiiieil  by  iJrakf  to  do  no,  and  in 
May,  INTO.  Drake  coiiiiiieneed  an  action  in 
th(!  exchei|iier  division  auninst  Wore  for 
the  recovery  of  the  inare.  The  iieiiuii  was 
trieil  on  the  Jiid  of  Deeeailier,  ^s~i^,,  when 
a  verdict  wa.s  found  for  the  plaintiff  for 
ilid.  the  value  of  the  mare,  such  amount 
to  lie  reiliiced  to  Is.  if  the  mare  was  re- 
turned t«;  the  plaintiff  on  the  Itli  of  De- 
eeinher,  and  tJ."i  d.-iniam  w  for  the  wronuful 
detention.  And  the  jud^e  dirccteil  jiidfj;. 
ment  for  £^^>,  and  the  costs  of  the  action. 
Tlie  defendaat  iliil  not  return  the  lUiirc, 
anil  on  the  lith  of  Decenilier,  the  plaintifl's 
Holicitor's  bill  of  costs  wa.s  taxed  at  £71) 
10s.  2d.  .\t  an  earlier  hinir  on  the  same 
day  Ware  had  filed  a  liquidation  petition, 
and  notice  of  the  petition  was  niven  to 
the  plaintiff's  solicitor  by  Ware's  scdicitor 
when  they  attended  the  taxation.  On 
thesaine  day  Drakesi;rned  judtimeat  in  the 
action  for  il.").")  lus.  I.M.,  and  issued  and 
lixlsed  with  the  sheriff  of  .Middlesex  a  writ 
of  li.  fa.  on  the  judsimcnt.  On  the  7th  of 
December  the  sheriff  levied  on  the  Koods 
of  Ware,  not  including  the  mare.  .\n  or- 
der was  .ifterwards  tn;ide  by  tlie  court  of 
lankiiiptcy  restrainin;;'  the  iiroeeediims 
miller  the  execution,  ami  the  shi'riff  with- 
drew. The  first  meeting  of  the  creditors 
was  held  on  the  .'ilh  of  .lanuary.  IsTT.  when 
Drake  tendered  a  proof.  Ills  iillidavit 
stated  the  veidict  in  the  action,  the  sij^n- 
iuK  of  j;iiluinent,  the  t;ixntion  of  theeosts, 
and  that  the  mare  had  not  been  delivered 
tu  him,  nor  the  £S.">,  or  the  amount  of  the 
taxed  costs  paid  to  him.  The  atlidavit 
went  on  to  state  that  Ware  was  i\lso,  at 
the  date  of  the  institution  of  the  liipiida- 
tion  iiroiMedin^-s.  and  still  was.  indebted 
to  him  in  the  sum  of  'J Jii4  for  hire  of  the 
mare  from  the  li.'.th  of  March,  ls:."i,  to  the 
2nd  of  December,  1S7(;,  for  which  sum  he 
had  not  received  any  satisfaction  or  se- 
curity Me  further  said  that  he  luid  not 
received  any  satisfaction  or  security  for 
the  amount  recovered  liy  liim  under  the 
judgment,  except  so  far  as  the  same  was 
secured  by  the  goods  levied  upon  by  the 
sheriff.  This  proof  was  objected  to  by 
the  debtor,  on  the  uround,  as  to  the  i;L'ri4, 
that  an  action  was  pending  in  the  com- 
mon ideis  division  by  the  debtor  agjiinst 
Drake,  in  which  Drake  had  set  up  a  coun- 
ter-claim for  tldO  for  hire  of  the  mare, 
upon  which  issue  had  been  joined,  and  as 
to  the  costs  claimed,  oil  the  ground  that 
the  judgment  was  not  iirodiiced.  This  ob- 
jection was  marked  on  the  proof  and 
Rigiicd  by  the  chairman  at  the  meeting. 
Drake  voted  at  the  meeting.  Tlie  firoof 
was  afterwards  idijeeteil  to  by  the  trus- 
tee in  the  lii|uiilatioii,  as  to  the  Cl'i'.l.  on 
the  ground   that  no  contract  for  hire  was 


ever  entered  into  by  the  debtor.  On  the 
lOlh  of  .lanuary.  IsTT,  Drake  applied  ti> 
the  court  in  the  lli|niilation  for  an  order 
that  the  trustee  should  deliver  to  lilm  the 
goods  which  had  been  seized  by  the  sher- 
iff, or  that  he  should,  out  of  tiie  lirHt  aH- 
setH  belonging  to  the  estate  of  Ware 
u  liieh  should  come  to  liiit  liandH,  pav  to 
Drake  the  tl.'..'.  10m.  2d.  due  lo  liim  under 
the  judgment,  with  interest  until  pay- 
ment. This  motion  was  by  con.-ient  turned 
into  a  special  case.  I'pon  the  hearing  of 
the  case  on  the  l:ith  of  Kebruary.  the  reg- 
i.-trar  decided  that  Draktf  was'not  ent'- 
tled  to  any  relief.  .\t  this  time  Drake  did 
not  know  where  the  mare  was.  Itut  oit 
the  ]:'.tli  of  .March  he  accidentally  iliHC'iv- 
ered  her  in  the  po.ssession  of  the  debtor, 
whose  servant  was  driving  her.  The 
debtor  was,  with  the  periiilssion  of  the 
trustee,  using  her  in  his  busiiiesi4.  Drake- 
thereupon  Instructed  the  sheriff  to  seize 
the  mare  under  the  writ  of  II.  fa.,  and  the' 
sheriff  on  the  same  day  forcibly  removed 
her  from  the  ilebtor's  possession.  On  the 
14tli  of  .March  the  trustee  iditaiiied  in  the 
court  of  liaakriiptcy  an  interim  injunction 
restr.'iiiiing  theshcriff  and  Drake  from  sell- 
ing the  mare, and  on  the  27thof  .March  the 
registrar  made  this  injunction  pirin-tual. 
ami  ordered  that  the  iiiiire  should  he 
forthwith  delivered  up  to  the  trustee. 
Drake  appealed. 

D.  Ivingsford.  for  appellant.  K.  C.  Wil- 
lis, for  trustee. 

.IKS.SEL.  M.  It.:— The  lirst  ipn-sthiii 
which  we  have  to  decide  is  one  which  Ik 
simple  enough  to  state— i.i  whom  was  the 
property  in  this  grey  mare  at  the  time 
when  she  was  taken  possession  of  by  tht- 
sheriff.'  The  property  was  originally  in 
Drake.  She  had  been  hired  fiom  him  by 
Ware,  the  liiiuidatiiig  debtor.  The  hiring 
was  put  an  end  to:  the  delitor  was  re- 
(juested  by  Drake  to  return  her.  and  he 
failed  to  do  so.  The  action  of  detinue 
was  brought  by  Drake,  and  he  reeovereil 
jiKlgmeut  in  the  ordinary  lorin.  .\fter 
that  the  idaintiff  issued  execution  on  bin 
judgment,  but  the  execution  was  defeated 
by  the  prior  act  of  bankruptcy  wiilcli 
overrode  it.  so  that  the  plalnliff  got  nuth- 
iiig  by  his  execulii>n.  .\fter  the  liling  of 
the  liiiuidation  petition  he  took  in  what 
has  been  called  a  proof  for  the  judgment 
debt  and  the  costs  of  the  action.  Some 
time  after  this  he  accidentally  saw  the 
mare  in  the  possession  of  the  debtor'H 
servant,  and  he  directed  thesherift's  olllrer 
to  seize  her  under  tlie  old  writ.  Thli» 
was  not  a  prope;-  mode  of  proceeding. 
The  trustee  then  obtained  from  the  regis- 
trar the  order  for  an  injunction,  and  for 
the  delivery  of  the  mare  to  him  :  ami  from 
thiit  order  the  appeal  is  brouu'hl.  Tlie 
first  iiiiestion  is.  ill  whom  was  the  prop- 
erty in  the  iiiare  when  she  was  seiieil  by 
the  sheriff's  oltlcer  .'  1  am  of  opinion  ihnt. 
after  the  decision  in  Driiisiuead  v.  Harri- 
son", we  are  luiund  to  hold  that  the  pro|>- 
erty  was  never  divested  from  Drake,  lie 
had  the  property  unless  something  which 
he  did  under  thejudgm,?nt  divested  it  Iron* 

'  Law  Kep.  7  C.   V.  547. 


264 


DRAKE,  EX  PARTE. 


liira.  It  is  clear  tliat  tlio  iuclfrmenl  itself 
(11(1  not  divest  the  property.  Did  the  ex- 
♦'ciition  divest  it?  I'pon  that  (jnestion 
tlie  authority  of  Briiisuiead  v.  Harrison 
is  distinctly  in  point.  It  shews  that  the 
<>xecntlon  does  not  divest  the  ))ro])erty 
unless  there  is  satisfaction  of  the  jndf;;- 
nient.  There  are  several  ways  in  v\  liich 
an  e.xecution  miK'ht produce  nothiuK.  One 
way  would  be  if  the  amount  produced  hy 
the  sale  of  the  ^oods  seized  did  not  cover 
tlie  expenses  of  the  sale.  Another  way 
would  he  if,  as  li;ippened  in  the  present 
case,  there  was  a  prior  act  of  bankruptcy 
which  nullified  the  execution.  The  judg- 
ments in  Brinsmecid  v.  Harrison-,  and 
especially  that  of  Mr.  Justice  Willes,  sliew 
that  the  theory  of  the  judsment  in  an  ac- 
tion of  detinue  is  that  it  is  a  kind  of  invol- 
untary sale  of  the  phiintiff's  s;ooiis  to  the 
defendant.  The  plaintiff  wants  to  net  his 
goods  back,  and  the  court  fiives  him  the 
next  best  thins,  that  is,  the  value  <jf  the 
Koods.  If  he  does  not  get  that  value,  then 
he  does  not  lose  his  property  in  the 
goods.  On  the  appeal  to  the  exchequer 
cliamber,  in  Brinsniead  v.  Harrison,  the 
only  two  judges  who  expressed  any  opin- 
ion on  the  point  confirmed  the  view  of  Mr. 
.luslice  Willis.  Mr.  .lustice  Blackburn 
said:^  "1  observe  that  the  court  of  com- 
mon ideas,  in  their  judgment  upon  the  de- 
murrer to  the  new  assignment,  which  is 
uot  now  before  us,  held  that  by  the  re- 
covery in  thefirst  action  without  satisfac- 
tion the  property  in  the  chattel  did  not 
pass.  I  should  be  inclined  to  agree  to 
this,  but  it  is  unnecessary  to  oxjiress  an 
opinion  upon  it."  And  Mr.  .lustice  Lush 
said:!  "The  judges  who  decided  those 
American  cases  seem  to  have  thought 
that,  by  holding  that  recovery  against 
one  of  two  wrongdoers  was  a  bar  to  an 
action  .-igainst  the  other,  they  would  be 
deciding  that  the  property  in  the  chattel 
passed  by  the  recovery;  but  1  do  not 
think  that  by  any  means  follows;  and, 
as  at  i)resent  advised,  I  am  i)repared  to 
adhere  to  the  judgment  of  the  court  be- 
low upon  both  points."  Therefore  one 
judge  entirely  agreed  w'ith  Mr.  .Justice 
Willes,  and  the  other  was  inclined  to  agree 
with  him.  Under  these  circumstances 
we  must  consider  it  established  that  the 
pr(jperty  in  the  mare  remained  in  the 
plaintiff  Drake.  That  being  so,  he  had  a 
right  to  obtain  possession  of  his  pro|ierty 
either  by  taking  it  peaceably  or  b.v  means 
of  proper  legal  process.  As  I  understand 
the  provisions  of  sect.  78  of  the  common 
law  procedure  act,  18.i4,  the  i>laiutiff  (as- 
suming that  there  had  been  no  liciuidntion 
petition),  if  the  value  of  the  mare  had  not 
t)een  paid  to  him  under  the  judgment,  and 
if  he  could  have  found  out  where  the  mare 
was,  might  have  applied  to  a  judge  at 
chambers  for  an  order  that  the  defendant 
should  deliver  her  to  him.  The  liquida- 
tion petition  prevented  him  from  doing 
that,  but  the  pf>wer  of  the  judge  at  cbam- 
bors  became  then  vested  in  the  court  of 
bankruptcy,    which    could     do    complete 


'  L,.Tsv  Kep.  6  C.  P.  .584. 
'  Law  Rep.  7  C.  P.  554. 
'Law  Rep.  7  C.   P.  555. 


justice  in  the  matter.  The  plaintiff  Drake, 
therefore,  if  he  had  applir'il  to  the  court 
of  bankruptcy,  miglit  have  obtained  an 
order  for  the  delivery  of  the  mare  to  him. 
But  it  is  said  that  he  cannot  do  this  now, 
because  he  is  bound  by  the  proof  whicn 
he  miidc  in  the  liquidation.  If  that  means 
an_vthmg  it  means  this,  that  the  plaintiff 
has  deliberately  elected  to  take  his  chance 
of  a  dividend  in  the  liquidation  in  substi- 
tution for  his  right  to  recover  possession 
of  his  mare.  It  would  be  very  extraor- 
dinary if  he  had  done  this,  but  of  course  it 
is  possible  that  he  may  have  done  it,  and 
we  must  examine  what  he  actually  did  in 
order  to  see  whether  he  has  really  made 
this  election.  He  has  done  nothing  be- 
yond bringing  in  a  in-oof.  The  proof  has 
not  been  fornially  admitted  by  the  trus- 
tee, though,  on  the  other  hand,  it  has  not 
been  rejected.  But,  before  a  reasonable 
time  had  elapsed  after  the  proof  was 
taken  in,  the  plaintiff  made  a  claim  to  be 
paid  in  full  the  whole  amount  of  his  juilg- 
ment.  that  is,  he  made  a  tlaim  for  the  full 
value  of  the  chattel.  This  was  a  proceed- 
ing wholly  inconsistent  with  the  notion 
that  he  had  finally  elected  to  take  the 
dividend  instead  of  the  mare,  and  I  am  of 
opinion  that  he  had  made  no  such  elec- 
tion. The  result  is  that  the  order  of  the 
I'egistrar  must  be  discliarged,  and  we 
must  now  make  the  order  which  he  ought 
to  have  made,  that  is,  that  the  mare  be 
delivered  to  or  retained  by  the  ai)[)ollant. 
But,  inasmuch  as  his  proceedings  in  di- 
recting the  sheriff  to  seize  the  mare  were 
not  such  as  can  be  viewed  with  approba- 
tion by  the  court,  the  proper  order  as  to 
costs  will  be  that  there  be  no  costs  on 
either  side,  either  of  the  hearing  before  the 
registrar  or  of  the  appeal. 

.TAMES,  L.  .1. : — lam  of  the  same  opin- 
ion. I  think  it  is  not  the  business  of  any 
court  of  justice  to  find  facilities  for  en- 
abling one  man  to  steal  another  man's 
property.  That  is  really  what  we  are 
asked  to  do  by  the  respondent.  The  ap- 
pellant desired  to  get  his  mare  back.  He 
brought  his  action  of  detinue,  and  he  ob- 
tained a  judgment,  the  effect  of  which  was 
that  the  defendant  was  to  pay  the  value 
of  the  mare  or  give  her  up.  The  trustee 
seems  to  think  that  because  th.e  defend- 
aot  has  become  bankrupt,  he  can  keep 
the  value  and  not  give  up  the  animal.  It 
is  impossible  to  hold  that  that  can  be 
right,  and  I  am  very  glad  to  find  that  we 
have  the  authority  of  the  courts  of  com- 
mon pleas  and  exchequer  charaberfor  say- 
ing that  such  is  not  the  state  of  the  la  w 
of  England.  I  agree  also  with  the  mas- 
ter of  the  rolls  that  in  the  present  case 
there  has  been  no  election  by  the  appel- 
lant tu  take  a  dividend  in  lieu  of  his  judg- 
ment. A  man  does  not  elect  himself  out 
of  his  propeity  in  this  sort  of  vray.  I 
agree  also  that  the  sheriff  ought  not  to 
have  been  put  in  motion  to  take  the  mare 
away  from  the  trustee,  who,  rightly  or 
wrongly,  had  got  possession  of  her.  But 
for  this  imiiroper  act  the  appellant  will  be 
sufficiently  punished  by  losing  all  hiscosts. 

BAGGALLAY,  L.  J.,  concurred. 


1 


DUUKY  V.  YOUNG.  207 

DmiHY  et  al.  v.  YOUNG.  1      Tlio    Htiitiitc    wns    pasKPfl      to    prcvrnt 

(58  Mil    .540)  Ifriiiiil    priu-tictMl    through    tlio   liiHtrutiii'ii- 

t'llit.v  <if  perjury.     It    wuh    pnsHcil    to  pri-- 

Cxjiirt  of  Appciils  of  Maryland-    July  12,  1R.S'J.    vi-iit     tlic   ili>reni|nnt    tniin    HiirU'riiit;    Iuhh, 

.    ^,        ,      ,„.,,.  ,,    ,,    ,.  .      ^    "l><"'    the    piiriil  teHtliiionv  of  cllliiT  n  iiiT- 

Actionl.yWiII.nm  I      H.  V  oung  aRa.nHt    j„r,.„  „,  ,„i',,„;,^„   wltneH«.  Hpo,.kin«   of   a 

iMlwm-.IT.     >r.jr.v    \\.li..m    H.  .JameH.  .Ir.,    l,ar^.„i,.  ,|iff,,,.nt    from     the    on..    iV,    fart 

aii.l    .Sa.nn.-I    M.  Uankta  lor  l.rrach  o   con-    „„„„,      ^    „„„,^.  ,i„.  .|,.fcnilant  onlv  hal.l- 

tract  to  ocliver  li«y<}»U,  plaint,  f.     !•  ro.n    „.l...ii    a    note  or  .nei.ioran.lu.u  of  the  l.ar- 

a    jiKlKnient    for  pla.nt.tt,  dolendantH    ap-    „„i„    ^i^,,,^.,,    ,        hi,,,^^,,    ^aM  pro.luccl  ot 

Mr,1"r1,''-^w  vVv'-  .;Vm."vinv^'*''''''l  "  l""'""-^'!  from  tl...  .lefen.lanfH  own 
m-vMi'ip  Z^^^''^^'  "OBINSON,  and  c.iKto.l.v,  It  Kuanln  a«ain«t  the  miHchief 
lU  ILIlll-.,  J.).  that  the  statute    waHpahMcd    lo    prevent. 

Orli-ndo  V.  Bump,  for  appellants.  1$.  jiiHt  as  well  uh  if  produced  from  tliecuM- 
Iloward  Hainan  and  Kd;;ar  H.  Ganw,  for  tody  of  the  plaintiff.  The  ilaintiff  Im  tlie 
appellee.  one  liUely  to  Huffer  liy  leaving  the  evidence 

of   liirt    l)ar}{ain  in  the  liandH  of  the  ilefcnd- 

STONK,  J.  One  of  the  qne.stionH  pre-  ant— not  the  >lefendant  liiinHelf. 
Kcnted  for  uur  coiiHidera (ion  in  this  caHc  The  Hiatiite  of  fraiidH  Ih  an  KukIIxIi  xtat- 
i8,  whether  tlie"noteor  iiie.i.draiidiiin  in  ute,  and  in  the  aliHence  of  any  exprcHH  ad- 
vvritinu"  .•(■(luired  by  the  seventeenth  sec-  judication  of  our  own  court,  we  naturally 
tion  of  the  .statute  of  frauds,  must  he  de-  look  lo  the  lOn^ilish  courts  as  the  hist  ex- 
livei'ed  to  the  other  party  thereto.  It  iH  pounilcrs  ol  their  own  slatnte,  and  K"tlier 
appai'ent  from  the  evidence  that  the  note  from  them  the  principlert  which  Hhuuld 
or  nieinorandum  in  writing  rtlied  on  in  Kuide  uh  In  construing  it. 
this  case,  was  niade  by  the  bookkoepi-r  of  In  the  case  of  (iilison  vs.  Ilollaml,  1 
the  appellant.^  by  the  direclion  of  one  (jf  I>aw  Keports,  ('.  I'.,  1,  the  only  note  or 
them,  ami  by  the  bookkeeper  placeil  in  mi'inorandiini  of  the  liaruuiii  wan  a  letter 
their  safe,  amon;r  other  papers,  \yhere  addressed  by  the  defendant  to  his  own 
it  remained  from  the  27th  of  Autcust,  aKent;  the  court  decided  that  to  lie  HUlfl- 
ISM,  the  <lay  on  which  it  was  written,  cient,  and  ICrle.t".  J.,in  deliverinu  hiH  opln- 
until    It    was    pro.luced  in    court,    at  the    ion.  said: 

trial  of  the  case  in  February,  Iss-.'.  There  "liiit  the  obji^-tion  relied  on  is,  that  the 
iH  no  evidence  that  this  note  was  ever  note  or  nieinorandum  of  that  I'ontract, 
seen  liy  the  appi'llee,  or  even  its  exist-  was  a  note  passim;  bet  wei'ii  the  defendant, 
ence  known  to  him  until  the  trial;  and  the  party  Hoii;;h;  to  be  rhariied.  and  hin 
it  certainly  neve.'  was  deliveicd  to  him,  own  ajrent,  and  not  bet  ween  the  one  Con- 
or   went    out  of  the   possession   of  the  ap-    tractiiiK  party  and  the  other. " 

pellanls,    nnlil    proiluccil    in    court.     It    is        "Tl bject    of    the    statute    of    fraurls, 

stroniily  insisted  by  the  appellants  that  was  the  p.-eventinn  of  perjury  i.i  theset- 
the  statute  is  not  ;;ra "  ilied  without  a  ile-  tin;;  up  of  coiitraels  by  parol  evidence, 
live.'y  of  this  note  o.-  nieinorandum.  It  which  is  easily  fabricated.  With  thin 
must  be  borne  in  mind  that  the  statute  of  view,  it  reiiuires  the  contract  to  be  proved, 
friuKls  was  nut  enacted  for  cases  where  by  the  production  of  some  note  or  memo- 
tlie  parties  have  signed  a  written  co-i-  randuni  in  wrilini:.  Now.a  note  or  ineiii- 
tract  ;  for  in  these  ca.ses,  the  common  law  orandum  iseipially  corroborative,  whetlier 
affords  (piite  a  suUicientKUJiranteeiitjainst  it  passes  lietwcen  the  parties  to  the  con- 
frauds  ami  perjuries,  as  is  provided  by  the  tract  themselves,  or  between  one  of  them 
statute.  The  intent  of  the  statute  was  to  and  his  own  a;;eiit.  Indeed,  one  would 
prevent  the  enforcement  of  parol  con-  incline  to  think  that  a  statement  made  liy 
tracts,  unless  the  defcmlant  could  be  the  party  to  his  own  a>;ent,  w<iuld  lie  the 
shown  to  have  executed  the  alleged  con-  more  satisfactory  evidence  of  the  two." 
tract  by  partial  performance,  or  unless  his  In  .lohnson  vs.  DodKHon,  U  Me<'son  & 
HiKiiati.n"  to  s<iine  writtc.i  note  or  memo-  |  Welsby,  n.'i:!,  the  defemlant  niaile  the  note 
randuni  of  the  bargain— not  to  the  bar- I  of  tlie  sale  in  his  own  book,  and  ^ot  ihe 
Kiiiii  itself,  could  be  shown.  aK'ent    of   the    plaintiff    to  siun  It,  and  the 

The  existence  of  the  note  or  memiiran-  ilefeiidant  retained  the  book  in  Ills  own 
dum  pri'supposes  an    antecedent    contract    possession. 

by  parol,  of  which  the  writinj;  is  u  note  It  was  held  by  the  court,  that  the  note 
or  memorandum.  lienjamin  on  Sales,  or  memoraiKlum  was  siilllcient,  and  the 
M'c.  L'OS.  1  plaintiff  recovered.     .No    notice  appears  to 

Now  the  statute  itself  is  entirely  silent  have  been  taken  by  the  court  Intheiropin- 
on  the  (luestion  of  tlie  delivery  of  the  ion.  of  the  fact  that  theincnioranduni  had 
note  or  memorandum  of  the  bar:;aln.  not  been  ilclivered.  but  had  In  en  retainetl 
and  its  literal  re(|uiremen ta  are  fullilled  p<)ssessloii  uf  by  th-  defendant.  Itiit  in 
by  till' existence  of  the  note  or  inenionin-  the  aiKument  of  I  he  case,  counsel  of  de- 
dnm  of  the  bargain,  simned  by  the  party  fendant  said.  "Sup|)ose  the  defendant 
tobechai-Ked  thereby.  The  statute  itself  had  simply  made  a  nieinorandum  in  his 
ileals  exclusively  witii  the  existence  and  own  book,  that  mi  such  a  day  the  plain- 
not  with  the  c.islodv  of  the  paper.  i  tiffsold  toliiin;   would  thai  b.-HUllhient  . 

If  tlie  noii-<leliverv  of  the    note,  does  not    To  which    Parke.  .1.,  replieil.  "  If  he    meant 
violate    the    letter  of  the  statute,  would  it    it    to    be  a  inemoraiidum  of  a  c.intract  be- 
violate   its  spirit  and   be    liable    to    any  of    tweeii  the  parlies,  it  would.' 
the  mischiefs  whidi  the  statute  was  made        From  these  authorities,  ami  the  reasons 
to  prevent?  I  upon    w  hicli  they  w.r- d.ci.bul,  we  are   of 


268 


DRURY  V.  YOUNG. 


opinion,  that  flelivery  is  not  essential  to 
the  vali(Jity  of  the  note  or  menKJi-andinn 
of  sale. 

The  next  question  which  arises  is,  wheth- 
er th9  note  or  inemoranduni  in  this  cose, 
is  signed  by  th.e  defendant?  The  note  is 
in  these  words:  " Office  of  Drury,  Ijnms  & 
Ksniiin,  Wholesale  and  Retail  Grocers, 
and  Dealers  in  Flour,  Feed  and  Fertilizers, 
Cor.  Gay  and  High  streets.  E.  T.  Drury, 
\V.  H.  Ijams,  Jr.,  S.  M.  Ranlun,  .Ir.  Bal- 
timore, Aug.  2rtli,  ISSI.  Sold  W.  H.  H. 
Young  &  Co.,  L',.5()0  cans,  say  ■'■),01)0  doz.  C. 
C.  C.  tomatoes,  (a)  SI. 10  p'r  do^.c^sh;  cars 
at  Phila.  Depot,  Balto.,  Md.  .5,000  dozen, 
@S1.10c.,  $."5,500.00."  It  ap|)ears  that  all 
the  words,  precedinK  the  words,  "  Haiti- 
moi'e,  .August  L'7th,  1S81,"  were  jirlnted, 
and  that  the  printed  part,  was  a  letter 
head,  and  the  written  portion  under  the 
heailing.  The  names  of  the  defendants 
being  in  print,  and  at  the  beginning  of  tlie 
note,  the  question  is,  whether  it  is  a  suffi- 
cient signing? 

It  is  entirely  immaterial  in  what  part 
of  the  instrument  the  name  of  tlie  party 
to  be  charged  appears,  it  it  is  put  tl)ere 
by  him,  or  by  his  authorit.y.  Higdon  vs. 
Thomas,  1  H.  &  G.,  l.")2. 

This  decision  of  our  court  settles  the 
question  that  the  place  of  the  signa- 
ture in  the  raenioranduni  is  immaterial, 
and  the  English  cases  are  equallj'  em- 
phatic, that  the  name  may  as  wtll  be 
printed  as  written,  if  tlie  printed  name  is 
adopted  by  the  party  to  be  charged. 

In  Schneider  vs.  Norris,  2  Maule  &  Sel- 
wyn,  2S(i,  Lord  Ellenborough  de-ided,  that 
the  appropriation  and  recognition  of  a 
printed  name  was  sufficient. 

It  is  therefore  a  sufficient  signing,  if  the 
name  he  in  print,  and  in  any  part  of  the 
instrument,  provided  that  tlie  name  is 
recogiiized  and  appropriated  by  the  party 
to  be  his.  The  note  or  memorandum  in 
this  case  upon  its  face,  contains  all  the 
necessary  terms  of  a  complete  bargain. 

The  names  of  the  vendors  and  pur- 
chasers, the  quantity  and  quality  of  the 
goods  contracted  for,  the  price  at  wliiih 
they  were  sold,  and  the  terms  of  sale,  and 
the  place  of  delivery,  are  all  clearly  ex- 
pres-ed  therein,  and  make  a  sufficiently 
good  memorandum  required  by  the  stat- 
ute. 

If  the  above  mentioned  memorandum 
was  insufficient  of  itself,  the  following 
letter  addressed  by  defendants  to  plaintiff, 
and  which  sufficiently  refers  in  its  terms 
to  the  former  note  or  memorandum, 
would  certainly  he  sufficient  when  taken 
in  connection  with  it,  to  take  this  case 
out  of  the  statute:  "Office of  Drury,  Ijanis 
&  Rankin,  Wholesale  and  Retail  (Grocers, 
and  Dealers  in  Flour,  Feed  and  Fertilizers, 
Cor.  Gav  and  High  Streets.  F.  T.  Drurv. 
W.  H.  Ijams,  Jr.,  S.  M.  Rankin,  Jr.  Ba'l- 
timore,  Aug.  20th,  ISSl.  Mess.  W.  H.  H. 
Young  &  Co.:  (Jents: — We  regret  to  say, 
it  is  impossible  for  the  Chase's  Canning 
Co.  to  furnish  tlie  2500  eases,  3  C  tomatoes 
purchased  of  u.-?  on  27tli  inst.,  (n)  1.10  per 
dozen.  Nor  do  we  think  it  possible  to  fill 
order  this  season,  as  tlie  fruit  cannot  be 
procured.  Hoping  this  ma.v  be  entirely 
satisfactory.    We    are    very     respectfully, 


Drury.  Ijams  &  Rankin."  There  Is  no 
dispute  as  to  the  signature  of  the  defend- 
ants to  this  letter,  or  that  it  was  ad- 
dressed to  tlie  plaintiff,  and  without  the  aid 
of  any  parol  evidence  it  can  easily  be  con- 
nected with  the  memorandum  of  27th  Au- 
gust, 1S81. 

That  the  letter  refers  to  the  same  bar- 
gain or  sale  that  the  niemorandum  does, 
is  sufficiently  shown  upon  the  fi:ce  of  it,  as 
it  mentions  the  same  sort  of  goods,  the 
same  quantity  and  price,  and  refers  to 
the  same  date. 

The  two  iiapers  can  then  be  connected 
with  sufficient  certainty,  without  the  aid 
of  any  extrinsic  evidence,  and  together 
make  a,  niemorandum,  meeting  the  re- 
quirements of  the  statute, even  if  themem- 
orandum  of  sale  itself  were  insufficient. 

We  have  then  a  sufficient  note  or  mem- 
orandum of  a  bargain,  provided  the  jury 
were  satisfied  that  an  antecedent  parol 
bargain,  substantially  agreeing  with  the 
said  note  or  meniorandum,  had  been  made 
between  [ilaintiff  and  defendants. 

Whether  such  antecedent  parol  bargain 
had  been  made  or  not,  was  for  the  jury  to 
decide,  and  it  was  also  for  the  jury  to  de- 
termine the  question,  whether  the  printed 
names  were  adopted  and  appropriated  by 
the  defendants  as  theirs,  as  well  as  the 
fact  of  the  memorandum  being  the  act  of 
their  authorized  agent. 

There  are  eighteen  prayers  in  the  rec- 
ord, many  of  them  with  shades  of  differ- 
ence, so  nice,  tliat  it  is  difficult  for  any 
one,  except  the  drawer,  to  see  in  what 
the  difference  consists.  The  first,  sixth, 
seventh,  twelfth,  thirteenth  and  fourteenth 
prayers  of  the  defendiints  relate  to 
the  insufficiency  of  the  niemorandum, 
considered  in  itself,  and  from  what  we 
have  already  said,  were  properly  rejected. 
The  fifteenth  prayer  of  the  defendants  as 
to  a  variance  between  the  oral  bargain 
and  the  memorandum  was  substantially 
covered  by  the  eighteenth  and  nineteenth 
prayers,  which  were  granted,  and  its  re- 
fusal is  therefore  no  ground  of  reversal. 
The  second  prayer  of  the  defendants  was 
properl.v  refused.  The  issue  in  this  case 
was  whether  there  was  a  contract  upon 
which  the  plaintiff  and  defendants  had 
agreed,  but  there  is  no  issue  involving  the 
fact  of  negotiations  only,  and  the  with- 
drawal of  the  defendants  from  such  nego- 
tiations, and  the  terms  of  the  prayer  were 
calculated  to  mislead  the  jury. 

The  ob-ections  of  the  defendants  to  the 
testimony  offered  in  the  second  bill  of  ex- 
ceptions ought  to  have  been  sustained; 
but  as  it  does  not  appear  what  evidence 
the  parties  asked  gave,  if  any,  the  error 
does  not  furnish  sufficient  ground  for  re- 
versal. 

The  ev'ilence  objected  to  in  the  defend- 
ants' third  bill  of  exceptions,  was  admis- 
sible. 

In  a  mercantile  transaction,  where  the 
terms  of  a  written  iuHtrument  are  tech- 
nical or  equivocal  on  its  face,  oral  evi- 
dence is  admissible  to  explain  the  cora- 
morcial  usage.  Williams  vs.  Woods  & 
Bridges,  16  Md.,  220. 

The  question  presented  by  the  defend- 
ants' first  bill  of  exceptions   has   been   ar- 


1 


DRURY  V.  YOUXG. 


269- 


Kii?(l  by  his  counsel  with  great  force  niid 
iiliility,  l)i>tli  iipon  THfiHon  iiiiil  iiutliority. 
W'l'  imist,  however,  ilorline  to  express  an 
ophiioD  upon  the  Hiiljject-niattor  (»f  that 
exce|)tioii,  for  the  very  olivioiis  roiiscjii 
that  no  decision  that  we  conld  now  niaUc, 
ujion  the  (luestion  presented  in  the  excep- 
tion, could  have  any  effect  upon  this  case. 

Tlie  ()\iestion  presented  by  tlie  first  ex- 
ception was  whetlier  theconrt  below  were 
wairanted  in  orderini;  the  production  of 
tlie  paper  mentioned  therein,  against  tlie 
protest  anil  objection  of  the  ilcfendants. 
But  tiiey  did  produce  tlie  paper. 

It  may  tie  that  the  defendants  are 
rii^lit  in  tlieir  hypothesis,  and  that  the 
court  below  were  in  error  in  cirderini;  its 
production,  and  that  it  lias  properly  n<i 
place  in  tliis  record.  But  it  is  in  this  rec- 
ord, and  we  liave  no  power  to  eliminate 
It  therefrom. 

'J'lie  plaintiff  has  already  received  the 
benefit  from    the  production  of  the  paper, ' 


and  we  know  of  no  way  in  which  we  can 

now  deprive  liim  of  that  benefit. 

We  would  be  nnulde,  by  u  reverHal  of 
this  judgment  and  sending  the  case  back 
for  trial,  to  place  the  defendants  in  (ho 
same  situation  that  they  were  liefore  they 
pro<liiced  the  paper.  Ity  their  own  act 
they  have  rendered  that  iniposHilile.  For 
the  puriiose  of  this  case,  the  paper  Is  no 
loiiKer  a  private  [laper,  liut  is  in  the  pos- 
session of  the  court  and  jury,  and  haH 
been  duly  delivi-red  to  tlieiii  liy  the  defeml- 
ants,  and  in  their  possesHion.  for  all  the 
purposes  of  this  suit,  it  must  now  remain. 
It  was  at  the  option  of  the  defendants  to 
have  refui-ed  to  produce  the  paper  at  the 
trial,  and  tal\e  the  risk  of  a  juiltinient  by 
default,  if  the  court  below  slioulil  have  de- 
termined to  render  one  ai;aii!Ht  them,  and 
upon  an  appeal  from  such  judgment  the 
(luestion  would  have  been  properly  be- 
fore UH. 

Judgment  allirmed. 


DUSTAN  V.  McAXDHEW. 


271 


DUSTAN  V.  M.ANDRKW. 


C'diiimission  of  Appuuls  of  New  York.    Dec.  28, 
1870. 

Action  for  breach  of  c(<iitrarl.  On  Auk. 
:.M,  lNG(t,  J.  S.  &  W.  Urown,  of  the  city  of 
New  Yorl<.  executed  on  a^reenieiit  witli 
tlie  phiiiitlff  aH  followH:  "In  conHidern- 
tioii  of  tlie  sum  of  one  dollar,  the  receipt 
of  wliich  is  hei'chy  acknowledged,  we  have 
Kold  thin  ilay  to  Mr.  Jolin  K.  UuHtan,  of 
tlii.s  city,  101), 000  pounds  of  first  sort  west- 
ern or  eastern  hops  as  we  may  select; 
growth  of  ls()0;  deliverable  in  tlie  city  of 
.New  York,  at  our  tjption,  durliiji  the 
months  of  t)ctoljer  or  November,  l^'io.  at 
seventeen  cents  per  pound,  subject  to  Mr. 
J.  S.  Brown's  Inspection,  or  other  mu- 
tually satisfactory.  Terms,  cash  on  ilellv- 
ery.  Mr.  Dustan's  name  to  be  made  satis- 
factory either  by  indorsement  or  l)y  Ji  ile- 
posit  of  *2,r)00  by  bolh  [larties.  J.  .S.  &  \V. 
lirown.  " 

(^n  Sept.  7,  the  plaintiff  sold  this  con- 
tract to  the  defendants,  by  an  instrument 
as  follows:  "In  consideration  of  the  sum 
of  one  dollar,  the  receipt  of  which  is  here- 
by acknowled^red,  I  have  this  day  sold  to 
.\lc.\ndrew  &  Wnnn  the  contract  of  .1.  .S.  & 
W.  lirown.datedLMth  AuKUst,  IMIo.for  loo.- 
000  pounds  first  sort  hops,  western  or 
eastern,  grow th  of  Im;o;  upon  condition 
that  the  said  Mc.\ndrew  i:  Warm  fullill 
the  conditions  of  said  contract  to  the  said 
.).  S.  i*i  W.  Brown,  and  i>ay  to  me,  in  ad- 
<lition,  on  delivery  of  the  hops,  ten  and 
one-hnir  cents  per  pound.  .lolin  K.  Dus- 
tnn.     New  York,  September?,  Is(i0." 

On  Nov.  2s. J.  S.  &  W.Itrown  notiliedthe 
plainlirr  by  letter,  that  they  would  de- 
liver the  hops  pursuant  to  contract  on 
tlie  :iOth  of  that  month  :  and  plaintiff  im- 
mediately, on  the  same  day.  notllied  the 
defendants  of  that  fact,  inclo.-iinj^  to  them 
the  letter  of  .1.  .S.  &  W.  Brown;  ;ind  on 
the  same  day  the  said  J.  .s.  &  W.Brown 
wrote  a  similar  letter  to  the  defendants. 
These  notices  actually  came  to  the  hands 
of  the  defendants  on  the  morninfx  of  the 
liOth. 

Prior  to  Nov.  ;!0,  .John  S.  Brown  had 
inspected  the  liops  and  put  his  braml 
upon  them,  and  certihed  that  they  were 
Hucli  hops  us  the  contract  called  for.  On 
Nov.  :il)  .1.  .S  vV:  W.  Brown  were  ready  and 
willinf;  to  deliver  the  hoiis,  and  the  defenil- 
ants  were  reiiuested  to  take  them,  anil 
they  declined  on  the  sole  ground  as  they 
claimed,  that  they  had  not  had  an  oppor- 
tunity to  examine  them  and  inspect  their 
(piality,  and  because  Messrs.  Brown  had 
refused  to  let  an  inspector  whom  they 
sent,  inspect  the  hops. 

On  Dec.  L'4  the  plaintiff  took  the  hops 
from  Messrs.  Brown  and  paid  for  tliem, 
and  on  the  same  ilny  wrote  the  followins 
letter  to  defendants:  "New  York.  Decem- 
ber '.Mth.  lsc,((.  .Messrs.  .McAndrew  \- 
Wanii:  (iputlenien.— The  mo.iiiio  pounds 
iKips  mentioned  in  contract  of.).  S.  \-  W. 
Brown  with  me,  of  24Hi  .\ufrust,  IstiO.  and 
In  contract  of  yourselves  with  me  of  7th 
September,  ISOO,  ni-e  now  at  the  store  No, 
4  Bridge  street,  awaiting  the  fullillment 
hy  you  of  the  terms  of  your  contract,  and 


I  hereby  teri<hT  to  you  the  said  hopH,  and 
demand  from  you  the  payment  of  the  sum 
nf  $'.'7,500.  the  amriiint  of  swi-h  contrart 
price.  Unless  you  comply  with  I  he  terms 
of  said  contract,  on  or  before  the  'JiJth  day 
of  December,  Instant,  I  v,i\\  proceed  to  well 
the  same  on  your  uccou'it  and  hold  you 
for  any  deficiency.  Your  obedient  serv- 
ant. .John  F.  Dustan. " 

Defendants  still  declined  to  take  the 
hops,  and  then  on  Dec.  Lfi  plaintiff  placed 
them  in  the  han<ls  of  a  hop  broker,  who 
sold  them  for  twenty  cents  per  pound. 

The  plaintiff  also  gave  evidence  that  on 
Nov.  :!0  anil  on  Dec.  M  twenty  cents  per 
pound  was  the  fair  market  value  of  the 
hops;  and  the  defendants  j;ave  evidence 
that  en  both  of  these  days  the  market 
value  wa-!  some  cents  higher.  Tlierewas 
also  evidence  showini;  that  hops  had  a 
downward  tendency  in  market  all  through 
the  month  of  December.  It  was  shown 
that  the  ho|is  in  all  respects  answered  the 
contract,     .lud^ment  for  plaintiff. 

William  A.  Bench,  for  appellants.  John 
N.  Whiting,  for  respondent. 

E.\RL,  C.  The  contract  rei)uired  that 
the  hops  should  be  in>*pected  hy  J.  S. 
Brown,  or  some  other  inspector  satisfuc- 
toi-y  to  both  parties.  In  case  .J.  S.  Brown 
could  not  or  sliould  not  inspect  them  for 
any  reason,  then  they  were  to  be  inspect- 
ed by  some  other  person  mutually  satis- 
factory. Neither  party  had  the  right  to 
demand  any  other  inspector,  unless 
Brown  neglected  or  refused  to  Inspect.  It 
is  doubtless  unusiiul  to  insert  a  stipula- 
tion in  contracts  that  the  vendor  shall 
inspect  the  goods  sold.  But  where  par- 
ties agree  to  this  they  must  he  bound  by 
their  contract,  and  it  must  he  construed 
the  same  as  if  some  other  (lerson  hod  been 
chosen  inspector. 

It  is  claimed  <m  the  part  of  the  respond- 
ent, and  was  held  l>y  the  court  below. 
that  the  inspection  provided  for  was  In- 
tended simply  lor  the  convenience  of  the 
vendors,  to  enable  them  to  perform  their 
contract,  and  that  It  merely  furnished 
prima  facie  evidence  that  the  hops  an- 
swered the  contract,  and  that  the  inspec- 
tion was  not  conclusive  upon  the  parties. 
I  cannot  assent  to  this.  The  contract 
was  for  the  sale  and  purcnase  ot  hops  of  n 
certain  description,  and  the  objin-t  of  the 
inspection  was  to  determine  for  the  hen- 
etit  of  both  parties  whether  they  answered 
that  description.  Tntil  the  vendors  de- 
livered the  hops  with  the  inspection,  the 
vendee  was  not  obliged  to  pay.  and  when 
so  delivered,  the  venilors  were  entitled  to 
the  purchase-price.  The  inspiH-tion  wan 
thus  as  much  foi-  the  convenience  and  ben- 
efit of  one  party  as  the  other.  Its  pur- 
pose, like  simllai  provisions  in  a  variety 
of  contracts,  was  to  prevent  dispute  and 
litiLMition  at  and  after  performance.  Hut 
if  the  inspection  was  merely  for  tlie  con- 
venience of  the  veiiilurs.  then  they  could 
dispensewith  it, and  compel  thevendeesto 
take  the  hops  without  any  Inspection 
whatever.  And  if  It  was  merely  priinn 
facie  evidence  of  the  i|uallty  of  the  hops, 
then  it  was  an  Idle  ceremony,  because  not 
being  binding,  the  vendee  could   still   dis- 


272 


DUSTAN  V.  McANDREW. 


I)ute  the  quality  of  the  hops,  refuse  to  take 
them,  and  show,  if  he  could,  when  sued 
for  not  tukuiff  them,  that  tliey  did  not 
answer  vhe  requirements  of  tlie  contract ; 
and  thus  the  plain  iiurpose  for  wliich  the 
provision  was  inserted  in  the  contract 
would  1)6  entirely  defeated. 

The  inspection  could  l)e  assailed  for 
fraud,  or  bad  faitli  in  making;  it,  and  per- 
haps witliin  tlie  case  of  McMahon  v.  New 
York  &  Erie  H.  Co.,  20  N.  Y.  4()3,  l)ecau.se 
made  without  notice  to  the  vendee.  The 
inspection  here  was  made  without  notice; 
but  it  is  not  necessary  to  determine 
whether  this  renders  it  invalid,  as  no  such 
defense  was  intimated  in  the  answer  or 
upon  the  trial. 

By  the  purchase  of  the  contract  the  de- 
fendants were  substituted,  as  to  its  per- 
formance, in  the  jjlace  of  the  vendee  there- 
in named,  and  were  bound  to  do  all  that 
he  had  atcreed  to  do  or  was  bound  in  law 
to  do.  When  notified  that  the  hops  were 
ready  for  delivery  they  declined  to  take 
them,  upon  the  sole  ground  that  they  had 
not  had  an  opportunity  to  examine  or  in- 
spect them  ;  and  tliey  claimed  that  tliey 
had  sent  one  Smith  to  inspect  them,  and 
that  he  had  been  declined  p(!rmission  to 
inspect  them.  Thare  was  no  proof  how- 
ever that  they  ever  tried  to  examine  or  in- 
spect the  hoi)s,  or  that  the  vendors  ever 
refused  to  permit  them  to  examine  or  in- 
spect them.  They  sent  Sinitli  to  inspect 
tliem,  and  he  went  to  one  of  the  several 
storehouses  where  some  of  the  hops  were 
stored,  and  he  says  he  was  there  refused 
an  opportunity  to  inspect  them  by  Mr.  A. 
A.  Brown.  But  there  is  no  proof  that  he 
was  in  any  way  connected  with  the 
vendor,  or  that  he  had  any  agency  or  au- 
thority whatever  from  tiiem.  There  was 
no  proof  that  defendants  ever  tried  with 
the  vendors  to  at;ree  upon  any  otiier  in- 
spector, or  tliat  they  ever  asked  the  ven- 
dors to  have  the  liops  inspected  by  any 
other  inspector,  and  they  made  no  com- 
plaint at  any  time  that  they  were  in- 
spected without  notice  to  them.  The 
point  thiit  they  should  have  had  notice 
of  the  inspection  was  not  taken  in  the 
niotion  for  a  nonsuit,  nor  in  any  of  the  re- 
quests to  the  court  to  charge  tlie  jury.  If 
tlie  point  liad  been  taken  in  the  answer 
or  on  the  trial,  the  plaintiff  might  perhaps 
liave  shown  tliat  notice  was  given  by  the 
vendors,  or  thit  it  was  waived. 

Hence  we  must  hold,  upon  the  case  as 
])resented  to  us,  that  there  was  no  default 
on  the  part  of  the  plaintiff  or  the  vendors, 


and  tliat  the  defendants  were  in  default 
in  not  taking  and  paying  for  tiie  liops. 
Tlie  only  other  (juestion  to  be  considered 
is,  whether  the  court  erred  in  the  rule  of 
damages  adopted    in  ordering  the  verdict. 

The  court  decided  tliat  the  plaintiff  was 
entitled  to  recover  the  difference  between 
the  contract  price  and  the  price  obtained 
by  tlie  plaintiff  upon  tlie  resale  of  tlie 
hops,  and  refused,  upon  the  request  of  the 
defendants,  to  sulimit  to  the  jury  tliecjues- 
tion  as  to  tlie  market  value  of  the  hops 
on  or  about  the  30th  day  of  November. 

The  vendor  of  personal  property  in  a 
suit  against  the  vendee  for  not  taking 
and  paying  for  the  property,  has  the 
choice  ordinarily  of  either  one  of  three 
methodsto indemnify  himself.  (1)  Heinay 
store  or  retain  the  property  for  the  ven- 
dee, and  sue  him  for  the  entire  purchase- 
price;  (2)  He  may  sell  the  property,  act- 
ing as  tlie  agent  for  this  purpose  of  the 
vendee,  and  recover  the  difference  between 
the  contract  price  and  the  price  obtained 
on  such  resale;  or  (3)  He  may  keep  the 
property  as  his  own,  and  recover  the 
difference  between  the  market  price  at 
the  time  and  place  of  delivery  and  the  con- 
tract price.  2  Para.  Cont.  484;  Sedgw. 
Dam.  282;  Lewis  v.  Greider,  -JO  Barb.  «06: 
Pollen  V.  Le  Roy,  30  N.  Y.  .549.  In  this 
case  the  plaintiff  chose  and  the  court  ap- 
plied the  second  ruleabove  mentioned.  In 
such  case  the  vendor  is  treated  as  the 
agent  of  the  vendee  to  make  the  sale,  and 
all  that  is  required  of  him  is  that  lie  should 
act  with  reasonable  cure  and  diligence, 
and  in  good  faith.  He  should  make  the 
sale  without  unnecessary  delay,  but  he 
must  be  the  judge  as  to  the  time  and  place 
of  sale,  provided  he  act  in  good  faith  and 
with  reasonable  care  and  diligence.  Here 
it  is  conceded  that  the  sale  was  fairly 
made;  it  was  made  in  the  city  of  New- 
York,  in  less  than  one  month  from  the 
time  the  defendants  refused  to  take  the 
hops.  It  was  not  claimed  on  the  trial 
that  the  delay  was  unreasonable,  and  we 
can  find  nothing  in  the  case  to  authorize 
us  to  hold  that  it  was  unjustifiable.  We 
are  therefore  of  the  opinion  that  the  court 
did  not  err  as  to  the  rule  of  damages. 

The  judgment  should  therefore  be  af- 
firmed, with  costs. 

For  attirmance:  LOTT,  C.  C. ;  EARL 
and  HUNT,  CC.  (jR.\Y,  C,  dissented  on 
the  ground  that  the  delay  in  selling  was 
too  great.     LEONARD,  C.,did  not  vote. 

Judgment  affirmed,  with  costs. 


1 


EASTER  V.  ALLEN. 


275 


EASTER  et  al.  v.  ALLEN. 

(8  Allen,  7.) 

Supreme  Judicial  Court  of  Massaohnsotts. 
Essex.    Jan.,  1804. 

Replevin.  At  the  trial  the  plnintiffH  in- 
troiluct'd  evidence  tlint  the  goods  were  ob- 
tained from  them  by  N.  Allen  without 
payment,  and  by  fraud  and  fuUe  prcteiiKeB. 
For  the  jiurpose  of  Khowlng  fraud,  they 
offered  ovideiiee  to  hIiow  that  two  days 
after  the  transaction  AWcu  went  into  a 
store  in  I'.oston  to  purchase  goods,  and 
informed  the  salesman  that  he  liacl  taken 
n  lease  of  a  store,  and  was  goi'iK  into  bus- 
iness, and  nave  the  name  of  I).  F.  Dodsxe, 
as  a  reference;  and  they  offered  to  show 
what  DodHO  said  in  reply  to  incjuiries 
made  of  hiui  by  tlie  salesman.  It  was  not 
contended  that  the  answers  of  Dodjrewere 
a  i>art  of  the  pretenses  under  which  the 
plaintiff's  {::oods  were  obtained,  or  that 
they  were  false;  and  the  judRO  rejected 
the  evidence.  The  i)laintiffs  also  offeicd 
to  sliow  that,  in  a  subseiiuent  interview 
with  the  same  salesman,  .Mien  introduced 
to  him  one  .J.  T.  Dodue,  as  a  dealer  in  tluiil 
lamps  on  Tremont  Row,  in  Boston;  and 
that  the  salesman  inquired  at  Tremont 
Row,  an<l  founil  that  said  Dodge  was  not 
u  dealer  in  fluid  lamps  there.  This  evi- 
dence was  rejected. 

One  of  the  plaintiffs  testified  as  a  wit- 
nes.s,  and  the  defendant  offered  to  show, 
by  cross-examination  of  him,  that  five 
days  liefore  the  trial  he  made  a  com|)lajnt 
against  N.  Allen  for  obtaining  the  goods 
by  false  pretenses,  and  that  the  warrant 
which  issued  thereon  was  served  on  the 
morning  of  the  trial,  l)y  arresting  Allen. 
This  evidence  wa.s  objected  to,  but  tl;e 
judge  admitted  it  to  show  bias  or  inter- 
est, thereby  affecting  the  credibility  of  the 
witness. 

The  judge  instructed  the  jury  that,  it  be- 
ing agieed  that  the  goods  came  into  the 
possession  of  the  defenilant  by  a  transac- 
tion wliich  had  the  form  of  a  sale,  the 
burden  was  on  the  idaintiffs  to  show,  by 
ii  |)reponderanco  of  testimony,  not  only 
that  the  goods  were  obtained  by  said  N. 
Allen  by  false  pretenses,  but  that  the  de- 
fenilant was  not  an  innocent  |)urchaser. 

The  jury  returned  a  verdict  for  tlie  de- 
fendant, and  the  plaintiffs  alleged  excep- 
tions. 

G.  E.  Betton,  for  plaintiffs.  S.  B.Ives, 
Jr.,  (H.  G.  Johnson  with  hiin.)  for  defend- 
ant. 

.MKRRICK,  J.  It  appears  from  the  bill 
of  exceptions  to  have  been  satlnfactorily 
proved  or  admitted  tliat  the  goods  re- 
plevied were  formerly  own<;d  by  the  plain- 
tiffs, and  were  sold  liy  them  to  N.  .Vllen. 
lie  afterwards  sold  and  delivered  them  to 
defendant,  who  claims  title  tliereto  only 
under  and  by  force  of  that  sale  to  him. 
The  plaintiffs  alleged  that  the  saleby  them 
to  N.Allen  was  induced,  and  that  he  ob- 
tained possession  of  the  goods,  by  fraud 
and  by  false  and  fraudulent  pretenses.  It 
such  was  the  fact,  they  may  nndoul)tedly 
rescind  and  avoid  their  contract  of  sale, 
and  may  maintain  this  action  against  the 
defendant,  unless  he  was  n  purchaser  iu 


good  faith,  for  value  paid  and  without 
notice  of  fraud.  Iloffnian  v.  .Noble,  (i  Met. 
G8.     Rowley  v.  BIgelow,  IL'  I'ick.  :JU7. 

The  plaintiffs,  haviiii;  produced  evidence 
upon  the  trial  tending  to  show  the  alleged 
fraud,  jtskeil  the  court  to  instruct  the  jury 
that  if  .\.  Allen  obtained  the  goods  from 
them  liy  fraud  and  false  pretenseB.  the 
burden  of  proof  was  upon  the  defendant 
to  show  th;it  tie  bought  tlicra  in  eood 
faith  and  for  value  paid. 

But  the  court  declined  to  accede  to  this 
reiiuest.and  rules  that  thelinnlen  of  i)roof 
was  on  the  plaintiff  to  show  by  a  prepon- 
derance of  evidence,  not  only  that  the 
goods  were  obtained  by  N.  .Mien  by  false 
pretenses,  l)ut  also  that  the  (Kfendant  was 
not  an  innocent  purchaser;  and  the  jury 
were  accordingly  instructed  to  that  effect. 

This  ruliuir  was  erroneous.  It  was  sulli- 
cient  in  the  first  instance  for  the  plaintiffs 
to  i)rove  that  they  were  the  owners  of 
the  goods,  and  that  their  title  thereto 
was  never  divested  by  any  lawful  con- 
tract liiniling  up<»n  tliem.  They  had, 
therefore,  if  such  were  the  fact,  an  un- 
doubted right  to  reclaiui  and  recover  the 
goods  from  any  [)erson  who  •hail  not  pur- 
chased them  in  good  faith  and  for  value 
paid.  This  is  an  exception  of  which  the 
defendant  might  avail  himself.  But,  to 
establish  the  validity  of  his  title  aci|uircd 
under  the  sale  tn  .N.  .Mien,  it  is  incumbent 
on  him  to  show  that  he  was  a  purchaser 
in  fact,  and  i)aid  value  for  the  goods. 
I'roof  to  this  effect  will  establish  his  right, 
unless  it  be  further  siinwn  by  the  plain- 
tiffs that,  at  the  time  of  his  purchase,  he 
hail  kiiow'ledge  of  the  fraud. 

In  resjiect  to  proujissnry  notes,  it  has 
bien  repeatedly  determined  that  if  they 
have  been  fraudidently  obtained  from  tne 
maker,  or  fraudulently  put  into  circula- 
tion, in  un  action  thereon  by  an  indorsee, 
the  burden  of  |)roof,  after  such  fraud  has 
been  established,  is  on  him  to  show  that 
he  became  possessed  of  them  in  good  faith, 
liy  a  purchase  and  payment  of  value.  .Sis- 
termans  v.  Field,  !)  (irav,  :!."!1.  Kstalirook 
V.  Boyle.  1  Allen,  41-'.  Tucker  v.  Morrill, 
lb.  n-2s.  Smith  v.  lOdgeworth,  :{  Allen.  'SXi. 
The  reason  of  the  rule  is  apiilical>le  with 
greater  force  to  the  case  of  chattels  ob- 
tained by  fraud;  and  thereforea  purchaser 
from  a  "fraudulent  grantee,  who  had  no 
just  title,  ought  to  be  reiiuired  to  prove  a 
fact  necessarily  in  his  own  knowledge.  If 
such  fact  occiirred,  that  lie  paid  value  for 
the  goods  which  he  purchased.  Tliis  rule, 
in  its  application  to  chattels,  was  dis- 
tinctly recognized  and  alllrnied  in  thecnso 
of  I'ringlo  V.  I'hillips,  .'>  Sandf.  l.">7.  And 
so  in  the  cases  of  Hoffman  v.  .N"ol)le  and 
Rowley  v.  Bigelow,  ubi  sur>ra,  the  subse- 
(|neni  "purchaser  was  allowed  to  maintain 
his  title  upon  showing  alllrmatlvely  on 
his  part  that  lie  paid  value  for  the  chat- 
tels transferred  to  him  by  a  fraudulent 
vendee.  The  same  rule  has  been  observed 
and  practically  enforced  in  reference  to 
real  estate.  Somes  v.  Brewer,  -  i'it*.  1S4. 
Green  v.  Tanner,  s  Met.  411. 

The  further  rulings  of  the  court,  to 
whicli  exception  was  taken  by  tlie  plain- 
tiffs, were  unobjei-tionalile.  The  testi- 
mony offered  as  to  what  was  s.il.l  by  D. 
P.   Uodge,   und    what  answers,   were  rt- 


27f. 


EASTER   0.  ALLEN. 


turned  to  the  plaintiffs  to  their  inquiries 
niiide  in  Tremont  Row,  was,  iniiicr  the 
circiiiiistanccs  stntecl,  inatlinissilile.  It 
was  an  offer  of  proof,  not  of  vvhat  was 
said  by  any  party  to  tlio  suit,  as  to  any 
of  the  matters  involved  in  its  issue,  but  by 
strangers  wlio  had  uo  connection  witli  or 
interest  in  it,  and  therefore  was  obviously 
incompetent.  The  evidence  which  \Nas 
admitted  in  relation  to  tlie  conduct  of  the 
plaintiffs  in  reference  to  the  attendance 
cf  N.  Allen  as  a  witness  on  tlie  trial  was 
competent,  as    having   some   tendency   to 


show  an  effort  on  their  part  to  suppress 
tlie  introduction  of  material  evidence  in 
the  case,  and  thus  to  obtain  an  unfair  and 
unjust  advantage.  Such  conduct  might 
well  create  a  doubt  whether  their  allega- 
tion as  to  any  fraud  committed  by  Allen' 
was  well  founded. 

The  exceptions,  therefore,  as  to  the  re- 
jection and  admissibility  of  evidence  must 
be  overruled;  but  they  are  sustained  as 
to  '.he  ruling  of  the  court  upon  the  subject 
of  the  burden  oi  i)roof. 

Exceptions  sustained. 


I 


4 


EDGERTON  v.  HODGE.  279 

KDGRRTON  T.  IIODGIO.  '  ducting   freiiilit   nnil   comnilHsion,    then    I 

(41    Vt    CTi!)  linil  <liie  (lip  pliiinfiff  $411.1)1.     If    the  cnr- 

rt'iit    price   in    llii-  country,    jiiiid    by  pur- 
Suijrcmo    Courl   of    VcriiKmi.      Kiillaiid.      Jan.  I  t'li'iHccH  and  Hcnt  by  tlicmto  market,  1h  to 
Tcnii,  18U'J.  '"^  t'"?  '•"''••.  tlicn  1  lind  due  the  plaiiitlH  the 

Kuni  of  if:w,.:\2.  " 
AHSunipsit,  whicli  was  referred  to  a  ref-  "  Doisef.  .hily  IhI.  lsr>4.  Mr.  EilRcrton  • 
eree,  who  reported:  "That  on  the  30th  .Sir:— According  to  our  talk  vcMterdiiy  voii 
day  of  .liine,  lst)4,  tlie  parties  made  an  bou«lit  my  checHe  for  the  hcason.  I  Khali 
aKiecment  liy  parol,  by  wliich  the  defend-  Htand  to  it,  Imt  Hhall  want  von  to  pay  ine 
ant  agreed  to  well  t(j  tlio  plaintiff  what  ]  fifty  dollai-H  to  bind  it.  I  Hpone  there  Ih 
new  milk  cheewe  he  then  had  on  hand,  and  notliin^  holding  unUss  there  Ih  money 
iinKold.amountiii};  to  il7.')lbH..and  the  now  i)aid.  I  do  not  wiMJi  von  to  think  1  w  l«h 
milk  cheese  ho  Khould  make  thereafter  to  lly  from  Icttiri},' you  liavc  it  ho  that  it  is 
duriiiK  llie  sca.son,  and  the  plaintiff  agreed  sure.  I  will  pav  you  Interest  on  the 
to  |)ay  thedelendant  thereforat  the  rateof  nioney  until  the  fact  cheese  Ik  ilellvered. 
fifteen  and  a  half  cents  per  pound,  and  Yours  in  haste.  J.  U.  C  Hodge,  per  A.  II." 
ei'ery  twenty  days  thereafter  agreed  to  "I'awlet,  Jidy  2,  Im;4.  Mr.  lloilge: 
call  at  the  defendant's  house  in  Dorset,  Dear  Sir:— I  enclose  von  fifty  dollars  to 
select  such  cheese  as  would  be  fit  for  apply  on  your  dairy  o"f  cheese  "as  you  pro- 
market,  attend  its  weight  there,  and  pay  |)osed.  Yours,  truly,  S.  Kdgerton." 
the  defendant  for  the  cheese  so  selected!  The  court  at  the  March  term,  IM'.S,  Pier, 
and  weighed,  anil  then  the  defendant  was  point,  (".  .].,  presiding,  rendereil  judgment 
to  (ieliver  the  same  to  the  plaiiiliff  a t  the  on  tlic  leport  that  tlie  plaintiff  recover  of 
railroad  depot  in  Manchester.  The  day  the  defendant  the  smaller  sum  reported 
after  the  al)ove  agreement  was  made,  tlie  by  the  referee,  and  for  his  costs,  to  which 
defendant,  by  his  son,  Albert  Hodge,  wrote  the  defendant  excepted, 
and  sent  by  mail  a  letter   to    th"    plaintiff 

(a  copy  of  which  is  annexed,  dated  Jnlv  1,     ^  I''iy<'tte   Potter,  for  plaintirf.     Edgerton 
IWM.)    depositing    the   same   at     the    post    «    iNieholson    and  J.    B.  Bromley,    for  do- 
oflice  in  lOast  Rupert,  and  directed   to    the    ''^"''""'• 
plaintiff  at    I'awlet,  and    received    by  him  | 

by  mail  on  the  same  day.  The  ne.\i  day,  WILSON,  J.  The  parol  agreement,  en- 
after  the  return  mail  from  I'av.  let  to  1  tered  into  by  the  parties,  J une  ;!Otli,  being 
East  IJiipert  had  gone  out,  it  being  on  for  the  sale  of  goods,  wares  ai.d  mer- 
Satiirday,  tlie  plaintiff  enclosed  in  a  letter,  chandise  for  the  price  of  forty  dollars  and 
directed  t<»  the  defeiulant,  at  Kast  Rupert,  more,  is  within  the  statute  of  fraii.ls.  nod 
and  left  it  in  the  jiost  oflice  at  I'awlet,  to  inoperative,  unless  taken  out  of  the  stat- 
bo  carriecl  by  mail  to  the  defendant,  the  iite  by  the  suiiseijuent  acts  of  the  parties, 
sum  of  lifty  dollars.  (A  copy  of  plaintiff's  It  is  claimeil  by  the  iilaiiitiff  that  the  de- 
letter  is  hereunto  annexed,  and  the  envel-  feiidanfs  letter  under  date  of  .Inly  1st, 
ojie  enclosing  the  lifty  dollars  Is  post- :  an<l  the  depositing  of  tli.^  plaintiff's  lei- 
niarUed  '  I'awlet.  .Inly  1.')  This  letter  of  ter  with  the  lifty  dollars  In  the  postollice 
the  plaintiff  was,  on  the  sth  day  of  .lul.v,  on  the  L'd  of  that  month, constitute  a  pay- 
INCil,  handed  to  th"  said  .Mbert  Hodge,  by  meat  of  part  of  the  purchase  money  wlth- 
tlie  postmaster  of  Kast  Rupert,  anil  it  in  the  miaiiing  of  the  statute.  It  will  be 
was  on  the  same  day  carried  by  him  to  nbserved  that  when  those  letters  were 
the  ilefi'iidant,  opened  by  the  said  Albert,  ,  written,  no  binding  agreement  had  been 
tlie  til ty  dollars  refused  to  be  received  by  concluded.  The  defenilant,  in  his  letter  of 
the  defendant,  and  the  letter  of  the  plain-  .lul.v  1st,  says:  "Accoriliiig  to  our  talk 
tiff,  with  the  lifty  dollars,  and  tiie  envelope  yestei'd'iy,  ;.  on  bought  my  cheese  tor  the 
enclosing  them,  were,  by  mail,  returned  to  season.  I  shall  stand  to  it,  but  shall  want 
the  plaintiff,  with  no  comniunicalioii  ac-  lifly  dollars  to  bind  it."  By  that  letter 
conipanying  tliem  from  the  defenilant.  the  plaintiff  was  notitied  that  he  could 
The  [ilaintiff  received  the  so  enclosed  make  tlie  Ijargain  binding  upon  himself 
wiapper,  money  and  letter,  on  the'.tlhof  as  well  as  the  defendant,  by  paying  to 
.luly,  IS(;4,  and  kept  the  same  lifty  dollars  the  defendant  the  sum  demanded  lor  tliat 
for  six  months  thereafter.  A  daily  mail  purpose.  Tlie  plaintiff  on  li.e  ".'il  do.v  of 
is  carried  bet  ween  the  postollices  of  Paw-  July  enclosed  lifty  dollars  in  a  letter,  di- 
let  and  Kast  Rupert,  a  distance  of  six  reeled  to  the  defendant  and  deposited  it 
miles.  On  the  L'Oth  day  of  July,  lS(i4,  the  in  the  postotlice.  whicli  letti-r  was  dellv- 
plaintiff  sent  word  to  the  defenilant  to  ered  to  the  defendant  on  the  Siii  of  that 
deliver  what  cheese  he  had  lit  lor  market ,  miinth.  lie  did  not  accept  the  money, 
to  the  depot  in  .Manchester.  The  defend-  but  rcturni-d  it  to  the  plaintiff.  It  Is 
ant  replied  to  the  messenger  that  lie  !iad  clear  that  the  act  of  depositing  the  letter 
no  cheese  for  the  plaintiff.  Xo  other  com-  and  the  money  in  the  postotlice  was  not 
niuni:'atioii  ever  tO()k  place  between  the  a  payment  to  the  defendant.  His  letter 
parties  in  regard  to  the  cheese  after  the  did  not  direct  the  money  to  be  sent  by 
return  of  the  money  as  .'ibove  stated  until  mail:  it  contains  nolhiiig  that  would  In- 
tliis  suit  was  brought.  The  defendant  dicate  that  the  defenilant  expected  the 
sold  all  his  cheese  to  other  parties,  mak-  plaintiff  would  reply  liy  letter,  or  ncci-pt 
ing  his  Hrst  sale  on  the  L'Cth  dav  of  Jnlv,  the  proposition  by  de|iositing  the  money 
iMiJ.  If  the  court  shall  be  of  opinion  that  In  the  postolMce:  and  the  fact  that  the 
from  the  foregoing  facts  the  iilaintiff  is  en- I  defendant  by  letter  offered  to  allow  the 
titled  to  recover,  and  that  the  rule  of  plaintiff  to  perfci  t  the  agreement,  by  pay- 
rlamages  should  be  the  .New  York  market  lug  part  of  the  purchase  money,  diil  not 
price  for  cheese  for  the    season  of    1>>(U,  de- 1  authorize   or   invite   the   plaintiff  to  send 


280 


EDGERTON  v.  HODGE. 


the  ninnpy  by  ninil,  or  make  the  mail  the 
defendant's  carrier  of  the  money.  The  lan- 
Suuge  of  the  defendant's  letter  iti:  "I  shall 
want  you  to  pay  me  tifty  dollars  to  l)ind 
it,"  that  is,  to  make  it  a  valid  contract. 

The  money,  when  deposited  in  the  post- 
office,  belonsred  to  the  plaintiff;  It  bo- 
longed  to  the  plaintiff  while  being  car- 
ried by  mail  to  the  defendant,  and  it 
would  continue  the  property  of  the  plain- 
tiff unless  aecei)ted  by  the  defendant.  The 
plaintiff  took  the  ri.sk  not  only  of  the  safe 
conveyance  of  the  money  to  the  defend- 
ant, but  also  as  to  the  willingness  of  the 
defendant  to  accept  it.  The  defendant's 
letter,  not  constituting  snch  a  note  or 
memorandum  of  the  agreement  as  the 
statute  required,  left  it  optional  with  the 
defendant  to  accept  or  refuse  part  pay- 
ment when  offerei]  to  him,  the  same  as  if 
the  defendant  had  sent  to  the  plaintiff  a 
verbal  communication  of  the  same  import 
as  the  defendant's  letter.  A  point  is  made 
by  counsel  as  to  whether  the  money  vi-as 
conveyed  and  delivered  or  offered  to  the 
defendant,  within  a  rensonaltle  time  after 
his  letter  was  received  by  the  plaintiff, 
but  it  seems  to  us  that  the  time  the  money 
was  offered  is  not  material.  We  think, 
even  if  the  plaintiff  had  gone  immediately 
after  receiving  tlie  de[?ndant'8  letter,  and 
offered  and  tendered  to  him  the  fifty  dol- 
lars, the  defendant  would  have  been  un- 
<ler  no  legal  oliligation  to  accept  it.  The 
mere  offer  of  the  defendant  to  receive  the 
money  would  not  estop  him  from  refusing 
to  accept  it ;  but  in  order  to  take  the  case 
out  of  the  operation  of  the  statute,  it  re- 
quired the  agreement  or  consent  of  both 
parries,  as  to  payment  by  the  plaintiff 
and  acceptance  of  it  by  thedefendant.  Up- 
on the  facts  of  this  case,  we  think  the 
rights  of  the  parties  rest  upon  and  are  to 
be  determined  by  the  verbal  agreement  en- 
tered into  by  them  on  the  :iOthofJune, 
and  that  their  subsequent  attempts  to 
make  that  agreement  a  valid  contract 
can  not  aid  the  plaintiff.  The  statute 
provides  that  "no  contract  for  the  sale  of 
any  goods,  wares  or  merchandise,  for  the 
price  of  forty  dollars  or  more,  snail  be  val- 
id, unless  the  purchaser  shall  accept  and 
receive  part  of  the  goods  so  sold,  or  shall 
give  something  in  earnest  to  bind  the 
bargaiti,  or  in  part  payment,  or  unless 
some  note  ormemorandum  of  the  bargain 
be  made  in  writing,  and  signed  by  the 
party  to  be  charged  thereby,  or  by  some 
person  thereunto  by  him  lawfully  author- 
ized." 

The  very  language  of  the  statute  above 
quoted  implies  that  in  whichever  way 
the  parties  verbally  agree  or  propose  that 
contract  for  the  sale  of  goods,  wares  or 
merchandise,  for  the  price  of  5^40  or  more, 
shall  be  made  exempt  from  the  statute  of 


frauds,  whether  it  be  by  the  purchaser  ac- 
cepting and  receiving  part  of  the  goods  so 
sold,  bj'  giving  something  in  earnest  to 
bind  the  bargain,  or  in  part  payment,  or 
by  making  a  note  or  memorandum  of  the 
bargain,  it  must  be  done,  if  done  at  all,  by 
the  consent  of  both  parties.  It  is  obvious 
that  it  would  require  the  consent  of  the 
purchaser  to  accept  and  receive  part  of 
the  goods,  and  he  could  not  receive  them 
unless  by  consent  of  the  seller;  the  pur- 
chaser could  not  give  something  in  earnest 
to  bind  the  bargain,  or  in  part  payment, 
unless  the  seller  accept  and  receive  it;  nor 
could  a  note  or  memorandum  of  the  bar- 
gain be  made  and  signed  unless  by  the 
consent  of  the  party  to  be  charged  there- 
by. A  valid  contract  is  an  agreement  or 
covenant  between  two  or  more  persons, 
in  which  each  party  binds  himself  to  do 
or  forbear  some  act ;  and  each  acquires  a 
right  to  what  the  other  promises;  but  if 
the  parties,  in  making  a  contract  like  the 
pi'esent  one.  oujit  to  do  what  the  statute 
requires  to  be  done  to  niaUe  a  valid  con- 
tract, it  would  require  the  consent  of  both 
parties  to  supply  the  thing  omitted.  Sup- 
pose it  had  been  one  stipulation  of  the 
verbal  agreement  on  the  3Uth  of  .June  that 
the  plaintiff  should  give  and  the  defend- 
ant receive  something  in  earnest  to  bind 
the  bargain, and  in  pursuanceof  such  stip- 
ulation the  plaintiff  had  then  offered  to 
give  or  pay  the  amount  so  stipulated, 
and  the  defendant  had  refused  to  receive 
it,  saying  that  he  preferred  not  to  receive 
any  money  until  lie  had  delivered  the 
whole  or  part  of  the  pi'operty,  or  had  re- 
fused to  accept  the  money  so  offered,  or  do 
any  other  act  to  bind  the  bargain,  with- 
out giving  any  reason  for  such  refusal,  it 
would  be  evident  that  he  did  not  intend 
to  make  a  binding  contract.  But  the  fact 
that  he  had  made  such  verbal  agreement 
to  receive  something  or  to  do  some  other 
act  to  bind  the  bargain,  and  that  the 
plaintiff  was  ready  and  offered  to  comply 
on  his  part,  would  not  take  the  agreement 
out  of  the  statute.  A  verbal  stipulation 
to  give  and  to  receive  something  In  ear- 
nest to  bind  the  bargain  or  in  part  pay- 
ment, or  a  verbal  promise  to  make  a  note 
or  memorandum  In  writing  necessary  to 
exempt  the  agreement  from  the  operation 
of  the  statute,  is  as  much  within  the  stat- 
ute of  frauds  as  is  the  agreement  or  con- 
tract taken  as  a  whole;  and  a  note  or 
memorandum  in  relation  to  giving  some- 
thing in  earnest  to  bind  the  l)argain,  or  in 
part  payment,  which  is  insufficient  of  itself 
to  take  the  contract  out  of  the  statute,  is 
alsoinsuflicieot  to  make  thecontract  bind- 
ing upon  either  party. 

The  judgment  of  the  county  court  is  re- 
versed and  judgment  for  the  defendant  for 
his  costs. 


mJ 


EICHHOLZ  V.  BAlJINISTER. 


28:$ 


KTfllllOLZ  V.   BANNISTKR. 

117  C.  B.  [N.  S.]  70S.) 

Common  Tlias,  Micliaolmas  Term,  28  Victoria. 

Nov.   17,  ISUl. 

This  w;iH  an  action  for  inonc.v  pn.vnble 
l)y  tluMleffiiilniil  to  the  pliiitiliff  forinonc.v 
received  l)V  the  (lefciiiluiit  fur  the  use  of 
the  plaintiff,  for  money  paid  by  the  plain- 
tiff for  tlie  (lefeiidant  at  hlH  reciiiOHt,  and 
foi'  money  found  to  lie  due  from  thedefetid- 
anl  to  tile  plaintiff  on  uccountH  staled : 
Claim,  »:i'.l.  I'lea,  never  inilebted,  where- 
upon iHKue  was  joined. 

The  cjinse  waH  tried  in  the  court  of  rec- 
(11  cl  (or  the  trial  of  civil  actions  within  the 
citv  of  Manchester,  hefore  the  deputy  re- 
corder, when  the  fads  which  appeared  in 
eviilence  were  as  follows:— The  plaintiff 
WHS  a  coniiniHsioii-anent  at  Manchester. 
Thedefendant  wnsa  job-warehouseman  in 
the  same  place.  On  the  isth  of  Ai>ril  last, 
the  iilainliff  went  to  the  defendanfs  ware- 
house, and  there  saw,  amon};st  other 
goods  which  the  defendant  had  just  iinr- 
chased,  17  pieces  of  prints,  which  heoffered 
to  buv  of  him  at  .">y,d.  a  yard.  After  some 
discussion,  the  defendant  nKreed  to  sell 
them,  and  u'ave  the  plaintiff  an  invoice  in 
thefollowinn  form,  the  wlioleof  whichwas 
printed,  with  the  exception  of  the  luirls  in 
italics: — 

"21,  Chorlton  Street,  Portland  Street, 
"Manchentor.     April  18th,  lS(i4. 

"  Mr.  I-Jichholz 

'•  Itought  of  R.  Bannister,  Job-Ware- 
hoiiseniaii. 

•  Prints,  Kents,  Grey  FnBtians.etc.  Job 
and  Perfect  Yarns  in  IlanUs,  Cops,  and 
Bundles. 

"17  pieces  o/prfa(s,  52  yds  at  5J^  d.        19  0  0 
"  IK  per  cent,  for  cash         0  0  0 

"£1S  U  0" 
The  plaintiff  paid  for  the  soods  before 
he  left  the  warehouse,  ami  the  defendant 
sent  them  by  a  porter  to  the  plaintilf's 
place  of  business.  The  plaintiff  sold  the 
lot  a  few  days  afterwards  for  Xl'.l  l">s.  net. 
The  gooils  were  snbseiiuently  returned  to 
the  plaintiff,  they  havinR  been  reco^ruizetl 
as  K'>"<ls  which  had  been  stolen  from  the 
premises  of  one  Krauss.  The  j^oods  were 
taken  possession  of  by  the  police,  and  the 
thief,  one  Asiiinall,  was  tried  at  the  gen- 
eral (luarter  sessions  of  I  he  peace  holden 
in  and  for  the  city  of  Manehister  on  the 
'.)tli  of  Mav  last,  and  convicted,  and  sen- 
tenceil  to  pen.il  servitude  for  four  years. 

On  the  part  of  the  defendant,  it  was  ob- 
jecleil  that  there  was  no  case  to  fi<>  to 
the  jury,  inasmuch  as  there  is  no  implieil 
warranlv  of  title  on  the  sale  of  (roods. 

Kor  thi'  plaintiff  it  was  insisted  that  he 
was  entitled  to  recover,  the  money  hiivins; 
been  (laid  upon  a  consideration  which  had 
wholly  failed. 

The  learned  judge  directed  a  verdict  to 
be  entered  for  the  plaintiff  for  the  amount 
c;aiined,  reserving  leave  to  the  defendant 
to  move  to  set  aside  the  yer<lict  and  en 
ter  a  nonsuit  or  a  verdict  for  the  defend- 
ant, if  the  court  should  be  of  opinion  that 
the  plaintiff  w;is  not  entitled  to  recover. 
Holker.  on  a  former  day  in  this  term,  ob- 
tained a  rule  nisi  acconlingly.  C.  rollock 
now  shewed  cause. 


ERLi:,  C.  .1.  I  am  of  opinion  that  this 
rule  should  be  ilischarged.  'I'lie  plaintiff 
brintis    his    action  to   recover  l>ack  m<<ney 

which    he  paid  (or   g Is    bought  by  liliu 

intheshop.of    the    ilefeinlant.  which  were 
afterwards  liiwinlly  claimed  from    him  by 
a  third  person,  the  true  owner, from  whom 
they  had  been   stolen.     The   plaintiff  now 
claims  to  recover  back  the   money  as  hav- 
ing  been    paiil    by  him    uiion  a  c<insidera- 
tion   which    has   failed.     Tin-  jury    at    the 
trial  friund  a  verdict  for  the  plaintiff,  under 
the    ilirection    of   the   learned   judge    who 
presided:  and    a    rule   has   been    obtained 
on    behalf   of    the   defendant    to  set    aside 
that  verdict  and    to   enter   a    nonsuit,    on 
the  ground  tliat  it  is  part  of    the  common 
law  of  Kngland  that  the  vendor   of  goods 
by  the  ini-re  contract  of  sale  does  not  war- 
rant his  title  to    the  goods    he   sells,  that 
thebuyer  takes  them  at  his  peril, and  that 
the  rule  caveat  emptfjr   applies.     The  case 
has  been  remarkably  well  argued  i-n  both 
sides;  and  the  court  are  much  indebteil  to 
the  learned  counsel  for  the  able  assistance 
they  liave  rendered  to  them.     The  result  I 
have   arrived   at,  is,  that    the   plaintiff  Is 
entitled  to  retain    his  verdiit.     I    consliler 
it  to  be  clear  upon  the  ancient  authorities, 
tiiiit,  if  tlie  vendor   of   a    chattel    by  word 
or  conduct  gives  the  iiurchaser    to    under- 
stand   that    he   is    the   owner,   that    tacit 
representation  forms  part  of  the  contract, 
and  tliat,  if  he  is  not    the   owner,  his   con- 
tract is  broken.     So  is  the  law  lalil    down 
in  the  veiy  elaborate  judgment  of    I'arke, 
B.,   in    Morley    v.    Attenborongh,  a   Kxch. 
500,  .'il:!,  where  that  learned  judge  puts  the 
ease  upon  which  I    ground    my  judgment. 
A  difference  is  taken  in  some   of   the  cases 
tietwecn   a   warranty    and    a  condition:' 
but  that  is  foreign  to  the    present  Inrpiiry. 
In    iMorlev    v.  Attenborongh,  :!    Kxch.  .'d:!, 
I'arke,    B..    says:    "We   ilo   not    sn|i|>o=«e 
that  there  wouUl  be  any  doubt,  if  the  arti- 
cles are  bought  in  a  shop    professedly  cnr- 
rieil    on   for    the  sale   of   u<iods.  that    the 
shopkeeper    must    be  considered    as  war- 
ranting that  those  who  purchase  will  have 
'I  good  title  to  keeii  the  goods    purchased. 
In    such    a   case   the   vendor   sells  "as   his 
own,'  and  that  is  what  is  ecpiivalent  to  n 
warranty  of  title."      No  doubt,  if   a  shi^p- 
keeper  in  words  or  by  his   comhict  alhrms 
at  thetimeof  the  sale  that  he  is  tiieotvner 
of   the   -oods,   sue!)    allirmatiou    becomes 
part  of  the  contract,  and.  if   it    turns   out 
that    he   is   not    the    owner,   so    that    the 
goods   are   lost    to    the    l>nver.    the   price 
wliicli  he   has    received    may  be   recovered 
back       i  ventured  to  throw  out   some   re- 
marks in  the  course  of  the  argument  upon 
the  doctrine  relied  on  by  Mr.  Holker,  wlilch 
!  he  answered  by  ass.'rfion    alter   assertion 
1  ciimiug  no  doubt  from  judges  of  great  au- 
i  thorltv  in  the  law,  to  the  effect  that  upon 
la   sale"<if  goods  there   is   no  inipbed  war- 
ranty  of   title.     The   passage  citc.l    fr.iin 
N()y"certainly  puts    the   proposition    in   a 
manner  that  must  shock  the   nnderstaiid- 
ingotanv  ordinary  person,    lint  I  takcthe 
:  nrincipleintended  to  be   illustrated    t.i   bo 
this— 1  am    in    possession   ol   a    horse  or 
other  chattel:    I    neither   Blllrm    or  deii.v 
that  I   am    the   owner:  It  you   choose  to 


S«. 


'  S.H-   Baniiermiiu  v.  White.  10  C.  B.   (N.   S.) 


284 


EICHHOLZ  V.  BANNISTER. 


take  it  aw  it  is,  withodt  more,  cavent 
emptor:  you  liave  no  ruiiircly,  tlioutrli  it 
Mliould  turn  out  tliat  I  liave  no  title. 
Wlierc  tliat  is  the  wliole  of  tlio  transae- 
tiou,  it  may  he  Tliat  there  is  no  warranty 
of  mle.  Sucii  seems  to  have  been  the 
principle  on  whii'li  Morley  v.  Attenhor- 
oush  was  (leciilecl.  The  i)a wnhrol^er, 
when  he  sells  an  unredeemed  pled>;e,  vir- 
tually says, — I  have  under  the  [irovisions 
of  the  statute-  a  right  to  sell.  If  you 
choose  to  buy  the  article,  it  is  at  your 
own  peril.  So,  in  the  case  of  the  sale  liy 
the  sheriff  of  Koods  seized  under  a  fi.  fa.. — 
Chapman  v.  Speller,  14  Q.  B.  621.  The  fact 
of  the  sale  taking  place  under  such  circum- 
stances is  notice  to  buyers  that  the  sheriff 
has  no  knowledge  (.f  the  title  to  thegoods; 
and  the  buyers  consequently  buy  at  their 
own  peril.  Many  contracts  of  sale  tacitly 
express  thesame  sort  of  disclaimerol  war- 
ranty. In  this  sense  It  is  that  I  under- 
stand the  decision  of  this  court  in  Hall  v. 
Conder,  2  C.  B.  (N  S.)  22.  There,  the 
plaintiff  merely  professed  to  sell  the  pat- 
ent-right such  as  be  had  it,  and  the  court 
held  that  the  contract  might  still  be  en- 
forced, though  the  patent  was  ultimately 
defeated  on  the  ground  of  want  of  nov- 
elty. The  thing  which  was  the  subject  of 
the  contract  there  was  not  matter,  it  was 
rather  in  the  nature  of  nrnd.  These  are 
some  of  the  cases  where  the  conduct  of  the 
seller  expresses  at  the  time  of  the  contract 
that  he  merely  contracts  to  sell  sucna  title 
as  he  himself  has  in  the  thing.  But,  in  al- 
most ail  the  transactions  of  sale  in  com- 
mon life,  the  seller  by  the  very  airt  of  selling 
holds  out  to  thebuyerthat  he  is  theowner 
of  the  article  he  offers  for  sale.  The  sale 
of  a  chattel  is  the  sti'iingest  act  of  domin- 
ion that  is  incidental  to  ownership.  A 
purchaser  under  ordinar.v  circumstances 
would  naturally  be  led  to  the  conclusion, 
that,  b.v  offering  an  article  for  sale,  the 
seller  alfirms  that  he  has  title  to  sell,  and 
that  the  buyer  may  enjoy  that  for  wliich 
he  parts  with  his  money  Such  a  case 
falls  within  the  doctrine  stated  bj'  Black- 
stone,  and  is  so  recognised  by  Littlertale, 
J., in  Early  v.  Garrett,!)  B.  &  t'.  9iS,4  M.  & 
R.  687,  and  by  Parke,  B.,  in  Morley  v.  At- 
tenborough,  3  Exch.  .518.  I  think  justice 
and  sound  sense  require  us  to  limit  the 
doctrine  so  often  repeated,  that  there  is 
no  implied  warranty  of  title  on  the  sale  of 
a  ciiattel.  I  cannot  but  take  notice,  that, 
after  all  the  research  of  two  very  learned 
counsel,  the  only  semblance  of  authority 
for  this  doctrine  from  the  time  of  Noy  anci 
Lord  Coke  consists  of  mere  dicta.  These 
dicta,  it  is  true,  appear  to  have  been 
adopted  by  several  learned  judges, 
amongst  others  by  my  excellent  Brotlier 
Williams,  whose  words  are  almost  obliga- 
tory on  me.  But  I  cannot  find  a  single  in- 
stance in  which  it  has  been  more  than  a 
repetition  of  barren  sounds,  never  result- 
ing in  the  fruit  of  a  judgment.  This  very 
much  tends  tu  show  the  wisdom  of  Lord 
Campbell's  remark  in  Sinis  v.  Marryat,  17 
Q.  B.  291.  thai  the  rule  is  beset  with  so 
many  exceptions  that  they  well  nigh  eat 
it  up.     It  is  to  be  hoped    that   the   notion 


39  &  40  Geo.  III.  c.  99,  §  17. 


whicli  has  so  long  prevailed  will  now  pass 
away,  and  that  no  further  impediment 
will  be  placed  in  the  way  of  a  buyer  re- 
covering back  money  which  he  has  parted 
with  ui)on  a  consideration  which  has 
failed. 

BYI  ES,  J.  I  also  am  of  opinion  that 
this  rule  should  be  discharged.  It  has 
been  said  over  and  over  again  that  there 
is  no  implied  warranty  of  title  on  the  mere 
sale  of  a  chattel.  But  it  is  certainly,  as 
my  Lord  has  observed,  barren  ground; 
not  a  single  judgment  has  been  given  up- 
on it.  In  every  cause,  there  has  been, 
subject  to  one  single  exception,  either  <lec- 
laration  or  conduct.  Chancellor  Kent,  2 
('om.  47H,  says:  "In  every  sale  of  a  chat- 
tel, if  the  possession  be  at  the  time  in  an- 
other, and  there  be  no  covenant  or  war- 
ranty of  title,  the  rule  of  caveat  emptor 
applies,  and  the  party  buys  at  his  peril;" 
for  which  he  cites  the  dicta  of  Lord  Holt 
in  Medina  v.  Stoughton,  1  Salk.  210,  1  Ld. 
Kavm.  .59;^,  and  of  Buller,  J.,  in  Paslev  v 
Freeman,  3  T.  R.  57,58.  "But,"  he  goes 
on, "if  the  seller  has  possession  of  the  arti- 
cle, and  he  sells  it  as  his  own,  and  not  as 
agent  for  another,  and  for  a  fair  price,  he 
is  understood  tn  warrant  the  title."  Thus 
the  law  stands  that,  if  there  be  declara- 
tion or  conduct  or  warranty  whereby  the 
buyer  is  induced  to  believe  tnat  the  seller 
has  title  to  the  goods  he  professes  to  sell, 
an  action  lies  for  a  breach.  There  can  sel- 
dom be  a  sale  of  goods  where  one  of  these 
circumstances  is  not  present.  I  think 
Lord  Campbell  was  right  when  lie  ob- 
served that  the  exceptitjns  ha  I  well  nigh 
eaten  up  the  rule. 

KEATING,.!.  I  am  of  the  same  opin- 
ion. Whether  it  be  an  exception  to  the 
rule  or  a  part  of  the  general  rule,  1  think 
we  do  not  controvert  any  decided  case  or 
dictum  when  we  assert,  that,  under  cir- 
cumstances like  those  of  the  present  cose, 
the  seller  of  goods  warrants  that  he  has 
title.  These  goods  were  bought  in  the 
(Jefendant's  shop  in  the  ordinary  course 
of  business.  He  gives  an  invoice  with 
them,  which  represents  that  he  is  selling 
them  as  vendor  in  the  ordinary  course.  1 
think  the  case  falls  within  that  put  by 
Parke,  B.,  in  Morley  v.  Attenborough,  3 
Esoh.  .">13,  of  a  sale  in  a  shop,  which  he 
treats  as  a  circumstance  which  beyond  all 
doubt  gives  rise  to  a  warranty  of  owner- 
ship. I  was  somewhat  pressed  by  Mr. 
Holker's  question  whether  there  is  more 
j>ffirmance  of  title  in  the  case  of  a  sale  in 
a  sho])  than  in  a  sale  elsewhere.  It  may 
be  that  the  distinction  is  very  fine  in  cer- 
tfiin  cases.  If  a  man  professes  to  sell 
without  any  qualification  out  of  a  sho|), 
it  is  not  easy  to  see  why  that  should  not 
have  the  same  operation  as  a  sale  in  the 
shop.  It  is  not  necessary,  however, to  de- 
cide that  question  now.  Here,  the  sale 
took  place  in  a  t)ublic  shop,  in  the  ordi- 
nary way  of  business,  and  ever.v  circum- 
stance concurs  to  bring  the  case  is'ithin 
the  distinction  put  by  Parke,  B.,iu  Morley 
v.  Attenborough. 

Rule  discharged. 


f1 


it 


El.LIS  V.  ANDREWS. 


287 


Bfll^LIS  T.  ANDREWS. 

(56  N.  Y.  83.) 

Conrt  of  Appeals  of  New  York.  Feb.  21,  1S74. 

Action  for  franfl.  The  complaint  al- 
leged that  "snid  (lefendantH  fraudulently 
stated  in  8ul)8tanco  to  said  plaintiff 
that  the  stock  of  the  C<jnKresH  and  ICiii- 
pire  Si)rinK  Company  was  worth  at  K-ust 
eigtity  percent  ui)on  the  par  value  there- 
oi,  which  Htutenietit  sahl  plaintiff  then 
and  there  lii'licved  to  he  true;  and  rely- 
ing tluTi'iipon  yjiirchawed  from  the  Haid  de- 
fendants f  J.'i.ddO  (jf  said  stock,  and  palil 
tlierefiir  f  JO.OOli  in  cash,  or  its  equivalent ; 
whereas,  in  truth  and  In  fact,  the  said 
stock  was  not  then  worth  over  forty  per 
cent,  and  which  fact  was  then  well  known 
to  said  defendants, whereby  the  said  plain- 
tiff sustained  damafieH,"  etc.  Judgment 
for  defendant. 

Vj.  F.  Bullard,  for  appellant.  Esck 
Cowcn,  for  respondents. 

GROVEU,  .7.  The  Code,  section  148,  in 
effect  provides,  that  the  objections  to  the 
jurisdiction  of  the  court,  and  that  the 
complaint  does  not  state  facts  su<Iicient 
to  constitute  a  cause  of  action,  are  not 
waived  by  a  failure  to  interpose  them 
by  demurrer  or  answer.  The  latter  objec- 
tion therefore  was  properly  raised  by  the 
respondents  upon  the  trial.  lu  an  acticjn 
to  recover  damages  claimed  to  have  lieen 
sustained  by  the  fraudulent  representa- 
tions of  the  defendants  the  complaint 
must  set  out  the  representations  relied 
upon.  (Jray  v.  Palmer,  2  Uobt.  5(J0.  This 
case  was  allirmed  by  this  court,  as  a|>- 
pear.-<  from  the  indcK  in  41  New  York,  (!:i(>, 
where  it  is  erroneously  said  to  have  been 
reported  in  2  Barbour.  The  court  having 
dismissed  the  coraiilaint  upon  the  groutid 
that  It  did  not  contain  facts  sufficient  to 
constitute  a  cause  of  action,  the  only 
iinestlon  is,  whether  it  did  contain  such 
facts.  The  complaint  is  very  brief,  and  in 
substance  avers  (hat  thedefcndants  fraud- 
ulently stated  to  the  plaintiff  that  the 
stock  of  the  Congress  and  Kmpire  .Spring 
('ompuny  was  worth  at  least  eighty  per 
cent  upon  the  par  value  thereof;  which 
statement  the  iilnlntiff  btdieved  to  be  true, 
and  relying  thereupon,  puichased  from 
the  defendants  $L'."),iiOO  of  said  stock,  and 
paid  therefor  :fiM),n()0  in  cash;  whereas  the 
stock  was  not  then,  in  fact,  worth  over 
forty  per  cent,'  which  fact  was  then  well 
known  to  the  defendants;  whereby  the 
plaintiff  sustained  damage,  etc.  The  as- 
sert ion  by  the  defendants  that  the  stock 
was  worth  eighty  percent  of  Its  par  value 
cannot  I  think  be  regarded  as  the  expres- 
sion of  an  opinion  as  to  its  value,  for  the 
reason  that  It  is  averreil  that  it  was 
frauilnlently  made,  and  that  they  then 
knew  that  it  was  not  worth  more  than 
forty  i)cr  cent.  I  think  it  mirst  be  re- 
garded as  a  false  statement  of  the  value, 
maile  for  thei)nrpose  of  olitaliiinga  higher 
prlei>  for  the  stock  than  ihey  knew  it  was 
worth.  The  question  then  Is.  whether 
such  n  statement  so  mndi-  by  the  vendor 
of  property,  while  negotiating  the  sale, 
gives   the  purchaser  who  has  contracted, 


relying  thereon,  a  cause  of  action  for  the 
deceit.  This  precise  (juestion  arose  in 
Murvey  v.  Young,  Yolvurton,  21.  In  the 
time  of  Qneen  Elizabeth.  In  that  cose 
the  plaintiff  alleged  that  the  defendant  OH- 
sured  him  that  a  certain  term  of  years 
which  he  proposed  to  sell  to  him  was  worth 
CI.'JO.  when  in  fact  it  was  worth  but  tHH); 
and  after  verdict  for  the  plaintiff  in  an  ac- 
tion for  the  deceit,  the  judgment  was  ar- 
rested upon  the  ground  that  It  was  the 
lilaintiff's  folly  to  give  credit  to  such  bh- 
sertion.  This  case  was  recognized  uh 
soutid  law  in  Ekins  v.  Tresham.  1  I.ev. 
102;  although  it  was  held  in  the  latter 
case  that  an  action  would  lie  for  a  fraud- 
ulent representatjon  by  the  vendor  that 
the  premises  were  leased  at  a  greater 
than  the  actual  rent.  The  distinction  Is 
obvious.  Upon  the  (|uestion  of  value  the 
purchaser  must  rely  u()on  his  own  judg- 
ment;  and  it  is  his  folly  to  rely  upon  the 
representation  of  the  vetnlor  in  that  re- 
spect; but  in  ri'gard  to  any  extrinsic  fact 
affecting  the  quality  or  vjilne  of  the  sub- 
ject xf  the  contract,  he  may  rely  u|'on  the 
asBurnnces  of  the  vendor,  and  if  he  does 
so  rely  and  the  assurances  are  fraudu- 
lently maile  to  induce  him  to  make  the 
contract,  he  may  have  an  action  for  the 
injury  sustained.  The  doctrine  thus  net- 
tled has  rarely  since  been  (|uestioned : 
which  accounts  for  the  very  few  cases 
found  in  the  books  discussing  the  point. 
In  Van  Epps  v.  Harrison,  .">  Hill.  (>:i;  40 
.\m.  Dec.  :!14,  It  is  statecl  as  umlouhted 
law  that  an  action  will  not  lie  by  a  pur- 
chaser against  a  venilor  upon  false  and 
fraudulent  statements  (tf  the  value  of  the 
property  sobi,  made  while  negotiating 
tlie  sale.  This  was  concurred  in  by  the 
entire  court.  I'.ronson,  .1.,  was  of  opin- 
ion that  the  action  would  not  lie  upon  a 
false  and  fraudulent  statement  so  made, 
as  to  the  prlc  which  the  ven<lor  had  paid 
for  the  properly,  but  the  majurily  of  the 
court  held  that  an  action  would  lie  lor  the 
latter.  The  eases  bearing  upon  the  ques- 
tion were  cited  anil  commented  upon  by 
Bronson,  .1.,  .Mnd  a  repetition  is  unneces- 
sary. Had  the  complaint  stated  that  de- 
feuilants.  upon  the  sale,  made  false  and 
fraudulent  stat<>mentH  tii  the  plaintiff  In 
relation  to  the  property  owned  hy  the 
corporation,  its  business,  pecuniary  con- 
dition, the  price  at  which  its  stock  was 
selling  In  the  market,  or  any  other  fact 
affecting  its  value,  with  intent  to  deceive 
an<l  defraud  her,  that  she  in  reliance  there- 
on had  tnaile  the  purchase  and  been  there- 
by injured,  It  woidd  have  shown  a  good 
cause  of  action.  Hubbell  v.  .Meigs,  M  S. 
Y.  4SII.  .\s  to  such  matters  a  purchaser 
has  a  right  to  rely  upon  the  statements 
of  the  vendor  but  not  upon  his  mere 
statements  of  the  value.  .Vs  to  the  lat- 
ter he  must  rely  upon  his  own  judgment, 
and  if  not  suHiciently  informed,  must  seek 
further  Information. 

The  complaint  in  this  case  falls  to  show 
a  cause  of  action,  and  was  therefore  right- 
ly dismissed.  The  judgment  must  be  af- 
firmed, with  costs. 

RAPAELO,  .lOlI.NSON  and  FOEGER. 
.1.1. ,  concur;  (TirUCH.  C  .?.,  atid  AN- 
DREWS, J.,  dissent ;  AlvLKN,  .r.,  absent. 


ELLI.s  V.  HUNT.  289 

KI.I.IS  (t  nl,   V.  HUNT  et  al.  I  cnHCH    aro    foiindcil.     There    have    iii<Ui"(| 

I-:  T.-rin    It    404*  I '""'"   cfiHCH,  wli^ri-   nlcc  (lUtinctionH   liuve 

lipcii  t.ikfii  on  tlif  fnct.  wliclher  thc'KooijH 

Court  of  King's  Bt-nch.     Micluiclinas  Ti-riii.  ,  '"•'i''  "i"  I'-'i''  "ol  H'>1  into  the    iiimeHHinn    o( 

ITS!).  till;  venilce;     lint  llic.v  till  [irofeHH  to  >;•>  ou 

the  ^rmiiid  or  the  ^tooiIm  lieiiiK  in  fninMitu, 

Trover  for  a  quantity  of  flk-H.  At  the  vv  hen  they  were  Ktopi.eil.  Ah  to  the  iiecoH- 
triul  I'.efore  Lord  Ken.voti,  at  WeHtiiiinKter,  sity  of  llie  kooiIh  eoniin^  t(»  tlie  "coriio- 
a  verillet  was  tal<eii  for  the  [ilalntirfs,  siih-  ral  toueh"  of  the  liiiiil<rn|it ;  ttiat  Im  niere- 
ji'Ct  to  tlie  opinion  of  the  court  on  tlie  fol-  l.v  a  fi;^ni ative  e.\|ireHHion,  and  hnH  never 
lowing  ease.  On  the  Illst  of  Octotier,  liss,  heen  literally  adhered  to.  Tor  there  may 
Moore,  tlic  liMntirii|)t.  onlered  the  Kood.s  lie  an  actual  delivery  (jf  tlie  ({oodH,  with- 
in (luestion  from  tlie  iilaiiitiffs,  who  are  out  the  bankrupt's  neelnK  them  ;  an  a  de- 
nianufMCliirerH  at  Shellield  ;  and  on  the  livery  of  the  key  of  the  venrlor's  ware- 
14  til  of  .\'o  vein  her  folio  w  in  j;  they  were  sent  house  to  the  iiu  re  ha  Her.  In  order  to  decide 
liy  Itoyle's  vva}j:Kon,  directed  to  the  hank-  this  ciiHe,  it  is  inaterial  to  attend  to  the 
rupt  in  KniiLind;  the  wa^Koii  lieiiiK  over-  dales ;  on  the  L'4I  h  of  Xovemlier  the  pro- 
loiKled,  the  cask  was  taken  (Hit  at  Stam-  visional  assignment  was  made  to  \Velln, 
ford,  in  itK  w:iy  to  town,  and  |iut  into  the  who  on  the  same  day  demanded  the  ;;oui]h 
defciidant  Hunt's  wafi;;dn,  which  liiduuht  in  (juestion  of  the  defendant  Hunt,  and 
it  to  the  Castle  and  I'alcon  inn,  in  l^on-  put  Imk  mark  on  the  cask.  Now  it  is  said 
don,  on  the  L'-d  of  .Vovetnlier  17ns.  The  that  this  sliouM  have  been  d<ine  hy  the 
Iilaintiff's  drew  a  bill  on  the  bankrupt  for  bankrupt  himself:  but  by  the  assiKn'ment 
part  of  the  value  of  the  uoods,  \iliich  bill  he  was  strippeil  of  ail  his  property,  which 
was  never  paid.  The  cask  and  files  were,  was  then  vested  in  tlie  provisional  as- 
on  their  arrival  in  town,  immediately  at-  si^nee.  Therefore,  if  a  corporal  touch 
taclied  li.v  -Messrs.  Kenton  and  Company,  were  necessary  to  defeat  the  ri;;lit  of  the 
creditors  of  the  bankrupt,  by  iirocess  of  vend<irs,  It  took  place  here.  It  is  true 
foreiun  attachment  issued  out  of  the  may-  that  the  provisional  assicneedid  not  alter 
or's  court  of  London  ;  the  cask  remained  the  situation  of  the  j;oods  ;  lint  they  were 
at  the  inn,  charj^cd  with  such  attachment,  then  arrived  at  the  end  of  their  dcRtined 
HO  far  as  the  same  could  cliar;;e  il.  On  journe.v,  and  deposited  in  a  place  where 
the  l.'itli  of  November  a  doc()uot  was  they  would  have  remained  till  tlie  bank- 
struck  ay:ainst  .Moore;  and  on  the  IStli  a  rupt  could  have  carrieil  tlieiii  to  a  ware- 
coniiiiission  of  bankrupt  issued  utcainst  house  of  his  own.  All  this  happened  on 
liiiii,  on  which  he  was  declared  a  bank-  the -4th  of  November ;  and  it  was  not  un- 
rupt,  and  the  other  defendants  were  til  the  :.NIli  of  that  month  ilia t  the  vendor 
chosen  his  nssijiiiees.  On  the -4th  of  No-  W!  ote  to  countermand  the  delivery  of  the 
vember  a  provisional  assitrninent  was  e.\-  jioodH;  but  that  was  too  late;  for  the 
ecuted  by  the  commissioners  to  .John  Koods  were  no  longer  In  transitu,  they 
Wells,  a  inessenner  under  the  coiiiir.isKion,  were  then  in  the  possession  of  the  pnrt.v 
who  on  the  suiiie  day  demanded  the  yooils  to  whom  they  were  coasifcned,  or  of  those 
in  iiiicstion  Iniiii  the  delendant  Hunt  the  who  represented  him.  In  rases  of  this 
earlier,  and  iiiit  his  mark  upon  the  cask,  sort  we  cannot  but  feel  for  the  situation 
but  (lid  not  take  the  Roods  away.  On  of  the  mamifacturer :  but  it  issuch  as  they 
the  I'stli  of  November  tlie  plain tiffsWroto  are  necessarily  subject  to  from  their  mode 
a  letter  to  the  aiieiit  of  Itoyle's  wajjfjon,  of  dealinfj:  however  the  severity  of  the 
directiiiK  him.  in  case  the  Roods  were  not  case  cannot  induce  us  to  break  thruURh 
delivereil,  t<i  keep  them  in  his  warehouse,  the  rule  of  la w. 
as  they  had  heard  that  Moore  was  be- 
come a  bankrupt.  Onthel.lth  of  Decern-  ASHIirF^ST,  .1.— TheleaniuK  of  my  mind 
her  the  pliiintilfs  demanded  the  cask  and  would  be  in  favour  of  the  plaintiff;  but 
files  of  Molt,  the  master  of  the  Castle  the  la w  will  not  allow  him  to  tie  in  a  het- 
aiid  Falcon,  and  offered  to  pay  the  car-  ter  situation  than  the  rest  of  the  bank- 
riajie  and  to  indeiiiiiify  him.  wliich  .\Iott  rupt's  creditors.  The  general  rule  is  that 
refused;  and  upon  the  attachnieiU  beiiiR  the  consignor  has  a  riuht  to  stop  the 
withdrawn,  he  delivered  up  the  k<. oils  to  jjoods,  if  he  can,  before  they  Ret  Into  the 
the  defendants,  the  assiRnecH,  of  whom  actual  possession  of  thebankiupt.  Hut 
they  have  since  been  demanded:  but  they  here,  before  the  plaintiffs  thouRht  ofcoun- 
have  refused  to  deliver  them  up.                   "  teriiiandiiiR   the    Roods    in    (iiiestion,    the 

...       ,    ,          ,    .    ..„        ,,    ,  ,     .        ,         ,  provisional   nssiRiiee,  who    th<u    stood  In 

Wood,  for   plaintiffs,     llaldwin,    for   de-  the   place  of    the  bankrupt,  had    actually 

icnilanttj.  taken    possession    of    them,  and    put    his 

mark  on  tlioni. 

Lord    KENYON,  C.  .1.  — If   any  case   had 

been  decided  to  the  extent  of  the  plaintiffs  UrLLKlL— I    am    not   ilisposed   to   dlH- 

BrRument,  niiinely,  that    bankruptcy  is  of  turh  or  to  lessen  the   authority    of   any  of 

itself  a   couiiteriiiand,  the    plaintiffs    here  the  cases   tluit  have  lieeii    decidrd  on  this 

would    be   entitled    to   recover:    but    that    subject:  but  no' f  them  could  justify  the 

has  never  yet  beer,  decided.     The  doctrine  vendor   in    this   case    in  taking    back    the 

of  stopping  Rooils  in  transitu  is  bottomed  Roods.     In    the  former  ca.ses  th-'  line   has 

on    the  case  of   .Snee  v.  I'rescot,  1  .\ tk.  l'4s,  been    precisely  drawn:  ami    they  nil    turn 

where  Lord  Hardwicke  estiilillshed  a  very  on  the  ((uestion,  whether  or  not  there  had 

wise  rule,  that    the  vendor   iiiiRht    resume  been  an  actual  delivery  to    the  bankrupt, 

the   possession    of  Roods  consiRiied  to  the  It  is  of  the  utmost  iui|;ortaiice   to   adhere 

vendee  before  delivery, in  case  of  the  bank-  to  that  line;  for   If  we   break    throuRh    It, 

ruptcy  of  the  vendee:  on  this  all  the  other  j  we  shall  endauRer  the  autbuiUy  ol  the 

L.\W  SALl-i5 — 19 


290 


ELLIS  V.  HUNT. 


cases  that  have  lieen  already  decided,  and 
shall  fritter  away  the  rule  entirely.  Jn 
one  of  the  cases  cited  Lord  Manslield  took 
the  distinction  between  an  actual,  and 
a  constructive,  delivery  to  the  vendee. 
There  may  be  cases  where,  as  between  the 
buyer  and  seller,  if  no  bankruptcy  or  in- 
solvency haiipen.the  jiouds  are  considered 
in  the  poKsfssion  of  the  buyer,  the  instant 
they  Ro  out  of  the  possession  of  tlin  ven- 
dor; as  if  A.  order  Roods  from  B.  to  be 
sent  by  a  particular  carrier  at  his  own 
risk,  the  delivery  to  the  carrier  is  a  deliv- 
ery to  the  vendee  to  every  other  purpose, 
but  still,  if  he  beconie  a  bankrupt  before 
the  carrier  actually  deliver  them  to  him, 
I  should  hold  that  the  vendor  rui«:lit  seize 
them;  because  that  is  only  a  constructive 
delivery  to  the  vendee:  but  an  actual  de- 
livep.v  is  necessary  to  devest  the  venilor'.s 
right  to  sto])pinR  the  Roods  in  transitu. 
It  is  fdear  that  bankruptcy  itself  does  not 
fjut  an  end  to  the  contract;  and  if  not, 
the  rijrlit  of  the  vendor  to  seize  goods  in 
transitu  is  founded  only  on  equitable 
principles.  It  is  a  riRht,  with  which  he  is 
indulRed  on  principles  of  justice,  originally 
established  in  courts  of  e(juity,  and  since 
adopted  in  L'ourts  of  law.  But  in  order  to 
avail  himself  of  it  he  must  stop  the  ^oods 
before  they  get  into  the  actual  possession 
of  the  vendee.  But  in  this  case  there  is 
the  strongest  evidence  of  the  consignee's 
taking  actual  possession  of  the  goods  of 
his  assignee  putting  his   mark   on  them. 


It  was  said  by  the  plaintiff's  counsel  that 
the  carrier  would  have  been  liable  in  an 
action  by  the  vendor:  but  he  would  not 
have  been  liable  in  thecharacterof  carrier, 
for  the  goods  had  got  to  the  enil  of  tbeir 
destined  journey;  but  he  would  have  been 
liable  only  as  a  warehouse-keeper,  in  re- 
spect of  tne  recoiupence  wnich  he  was  to 
receive  for  warehouse-room.  But  the  in- 
stant the  provisional  assignee  put  his  mark 
on  the  goods,  the  warehouse-man  became 
the  agent  or  servant  to  the  bankrupt. 

GROSE,  J.— The  general  rule  is  perfectly 
clear  that  the  consignor  may  seize  the 
goods  in  transitu,  in  case  of  the  insol- 
vency of  the  consignee,  before  they  actually 
reach  him.  Tlie  question  tliei-efore  here  is 
whether,  on  the  facts  of  this  case,  the 
goods  were  or  were  not  in  transitu  when 
the  plaintiffs  wrote  to  countermand  the 
delivery  of  them.  Now  it  is  s'tateil  as  a 
fact  that  before  this  letter  arrived  the  pro- 
visional assignee  had  put  his  mark  upon 
the  cask ;  and  this  distinguishes  it  from 
the  cases  cited.  When  the  goods  were 
marked,  they  were  delivered  to  the  con- 
signee as  far  as  the  circumstances  of  the 
case  would  permit;  the  assignee  could  not 
then  take  them  away,  because  they  were 
at  this  time  under  an  attachment.  After 
the  mark  was  put  on  them,  they  were  no 
longer  in  transitu;  and  consequently  the 
plaintiff's  rightto  seize  them  wasdevested. 

Postea  to  the  defendants. 


EMPIRE  STATE  TYPE  FOUNDING   CO.  v.  GKANT. 


293 


IMIPIRK  STATK  TYPE  FOUNDING  CO.  v. 
GKANT,    Sheriff. 

(21  N.   E.  Rep.  49,  114  N.  Y.  40.) 

(^ourt  of  Appeals  of  New  York,  Second  Divi- 
sion.   March  26,  1889. 

Appeal  from  supreme  court,  general  term, 
Fir.st  department. 

Action  by  the  Empire  State  Type  Foundry 
Company  against  Ilugli  J.  Grant,  slierirt  of 
the  city  and  county  of  New  York.  Judg- 
ment was  given  for  defendant,  and  plaintiff 
appeals. 

Qeorye  W.  Ulephens,  for  appellant.  Cuck- 
ran  &•  Clark,  for  respondent. 

Pai:ki;k,J.  In  March,  188G,  the  plnintiff, 
by  its  president,  agreed  to  sell  to  one  (iuy 
Trenielling  two  printing-presses,  with  the 
necessary  shafting,  together  with  a  quantity 
of  tyjjo  and  other  printers'  supplies,  for  the 
sum  of  .SI,  100. 'J.J,  payment  to  be  made  as  fol- 
lows: .5500  to  be  paid  in  cash,  and  a  chattel 
moilgage,  embracing  all  the  property  sold,  to 
be  given  by  Trenielling  forthe  balance.  The 
plaiiitilT  at  once  commenced  to  put  up  the 
shafting,  set  the  presses,  and  deliver  the  type 
and  other  materials.  When  the  work  was 
about  half  done  the  clerk  of  the  plainlilf  was 
sent  to  Trenielling  to  collect  the  cash  agreed 
to  be  paid.  Trenielling  paid  S2.W,  and  the 
plaintilf  went  on  with  the  work  of  putting 
the  presses  in  working  order,  transferring  the 
type  and  other  materials,  in  which  work  the 
plaiutilT  waseugai^ed  between  1.5  and  10  days. 
Iiiimrdiately  aftei-  the  materials  had  been  put 
in  and  work  coini)leted,  the  president  of  tho 
lilaintiff  went  to  the  oflice  of  Trenielling  to 
receive  the  jiayment  agreed  upon,  and  there 
learned  that  Trenielling  had  absconded.  On 
the  same  day,  or  the  day  following,  tho  de- 
fendant, as  slierilT  of  the  city  and  county  of 
New  York,  under  and  by  virtue  of  a  warrant 
of  attachment  regularly  issued  against  tho 
piO|)erty  of  Tieinelling,  levied  upon  the  ef- 
fects in  question.  Tlie  plaiiitill  thereupon 
commenced  this  action  to  recover  possession 
of  the  property.  At  the  close  of  the  plain- 
tiff's case,  the  defendant  moved  the  court  to 
direct  a  verdict  for  the  defendant.  The  plaiu- 
tilT asked  that  the  case  be  submitted  to  the 
jury.  The  court  denied  the  plaintiff's  re- 
quest, and  directed  a  verdict  for  the  defend- 
ant, the  plaintiff  duly  excepting.  We  think 
that  the  facts  jiroven  did  not  warrant  tho 
trial  court  in  holding  as  a  matter  of  law  that 
the  title  to  the  property  had  passed  from  plain- 
tiff to  Tremelling,  and  therefore  the  disposi- 
tion made  of  tho  case  was  error.  It  is  too 
well  settled  to  require  the  citation  of  author- 
ity, that,  where  a  sale  of  personal  property  is 
made  upon  condition  that  the  stipulated  price 
shall  be  paid  upon  ilelivery,  title  does  not  pass 
until  payment  made,  unless  tho  vendor  waive 
the  condition.  Under  such  a  contract,  deliv- 
ery and  payment  are  simultaneous  or  concur- 
rent acts  by  the  seller  and  buyer,  and  although 
the  articles  may  have  been  actually  delivered 
into  the  possession  of  the  vendee,  the  delivery 


is  held  to  bo  conditional,  and  not  absolute, 
provided  the  vendor  has  not,  by  subse<|uent 
act,  waived  the  condition  of  payment.  If, 
then,  the  agreement  between  tho  plaintiff  and 
Trenielling  had  jirovided  in  express  terms 
that  payment  be  made  on  delivery,  (no  proof 
liaving  been  offered  tending  to  show  u  sub- 
sequent waiver  of  such  condition,)  it  would 
have  been  the  duty  of  the  court  to  hold  as  a 
matter  of  law  that  the  title  to  the  chattels  still 
remained  in  the  plaintiff. 

The  agreement,  however,  did  not  provide 
in  express  terms  that  payment  should  be 
madeon  delivery.  Neitherdid  it  provide  that 
payment  and  delivery  should  not  be  concur- 
rent. The  rule  in  such  case  is  that  the  in- 
tent of  the  parties  must  control.  If  it  can 
be  inferred  from  the  acts  of  the  parties  and 
the  circumstances  surrounding  the  transac- 
tion that  it  was  the  intent  that  delivery  and 
payment  should  be  concurrent  acts,  the  title 
will  be  deemed  to  have  remained  in  the  vendor 
until  the  condition  of  payment  is  complied 
with.  1  lienj.  S:iles.  (Amer.  Kd.)  g  :{:50,  and 
notes;  Leven  v.  Smith,  1  Denio,  571;  Ham- 
mett  V.  Einneman,  48  N.  Y.  SKU;  Smith  v. 
Lvnes,  5  N.  Y.  41;  Parker  v.  Baxter,  80  N. 
Y".  580:  Russell  v.  .Minor,  22  Wend.  O.V.t. 
The  question  of  intent  is  one  of  fact,  not  of 
law.  It  is  for  the  jury,  not  the  court,  to  pa.ss 
upon.  Hall  V.  Stevens,  40  Ilun,  578;  Ilam- 
luett  V.  Einneman,  48  N.  Y.  -i'M.  It  appears 
that  the  defendant  stipulated  to  pay  for  the 
materials  sold,  .?500  in  cash,  and  give  a  chat- 
tel mortgage  on  all  of  the  projieity  for  the 
balance;  that  while  the  materials  were  being 
delivered  the  plaintilf  demanded  and  received 
,$250  on  account  of  the  cash  payment;  th,at, 
immediately  after  the  plaintilf  had  performed 
Ills  part  of  the  contract,  its  president  went 
toTreiiielling's  ollicelo  receive  payment,  and 
found  that  he  had  absconded,  and  that  the 
next  day  the  plaintiff's  president  asserted  to 
the  attaching  creditor  that  he  had  not  parted 
with  the  possession  of  the  goods.  These 
facts,  together  with  all  the  circumstances 
surrounding  the  transaction,  under  the  au- 
thorities cited,  should  have  been  submitted 
to  the  jury  under  proper  instruetions,  to  en- 
able them  to  determine  whether  the  title 
jiassed  to  Tremelling  or  remained  in  the  plain- 
tiff. 

It  is  suggested  in  one  of  the  opinions  of 
the  court  below  that  Tremelling  had  acquired 
an  interest  to  the  extent  of  .•?250  in  the  prop- 
erty which  wiis  subject  to  sale  untler  the  at- 
tachment. We  do  not  concur  in  that  view. 
If  it  be  determined  that  the  title  to  the  prop- 
erty remains  in  the  plaintiff,  the  case  falls 
within  the  established  rule  that  where  a 
vendor  of  chattels,  when  the  period  of  per- 
formance arrives,  is  ready  and  oiTers  to  [ht- 
foriu  on  his  part,  and  the  purchaser  neglects 
and  refuses  to  perform  for  any  rejison,  he 
cannot  recover  back  the  partial  payuienU  he 
hiis  made.  Monroe  v.  Reynolds,  47  liarb. 
574;  Ilumeston  v.  Cherry,  2'3IIun,  141.  The 
judgment  of  the  general  term  and  of  the  cir- 
cuit should  be  reversed,  and  a  new  trial  or- 
dered: nosts  to  abide  the  event.     All  concur. 


f 


FAIUBAXK  CA\XIN(;   CO.  p.  METZGEIi. 


•-•95 


FAIIIHANK  CANNING  CO.  v.  METZGER  et  al. 

(M  N.  E.  Rep.  .372,  lis  N.  Y.  260.) 

Court  of  Appeals  of  New  York,  Second  Division. 
Jan.  14,  1800. 

AtM'*""'  from  juflfcnicnt  of  tlie  Rcnpral 
torin  n(  Hie  Hii|ireiiie  court  in  the  foiirtli 
jiiiliciiil  (Icpiirlii^i'iit.entercil  ii|ion  an  order 
iiiiKle  .laniiiir.v  11,  )s.s7.  wliioli  olfirnicd  a 
jiiil^iiient  in  favor  of  plaintiff  enternil  upon 
tti"  report  of  n  referee. 

Tills  action  waw  brought  to  recover  the 
eoiiirael  price  oi  a  car-l.oad  of  dressed  hecf. 
The  answer  averred,  hy  way  of  counter- 
claiiii,  .-i  w;irr;nit.v  thai  tlie  iite;il  y'Miiild  lie 
clean,  well  dreHsoil,  nnd  in  first-class  con- 
dition, not  heatcil  liciore  liciiiK  killed,  and 
.•I  lire.-icli  tlierc'of  liy  nason  of  which  de- 
fendant sustained  damase. 

The  following:  facts  appeared  :  The  plain- 
tiff is  ucorporationenjiagcd  in  buying  and 
slaunliteriiij;-  cattle,  and  selling  fresh 
dressed  beef,  in  (.'hicaso.  The  defendants 
are  copirlners,  enfj;aited  in  wholesaling; 
and  relailiiiK  meat.  In  Fel)ruiiry.lNs:i,lhe 
I)l,iintiff,  by  letter,  solicited  thedcfendants 
to  purchase  from  it  what  dressed  beef  they 
re(iuired.  It  resulted  in  a  contract,  made 
entirely  b.v  corresiiondence,  for  meat  to  be 
wholesaled  from  the  car  hy  defendants' 
a}jent,from  Dunkirk  toEluiiia.  theportion 
remaining  unsold  when  the  car  should 
reach  Eliiiira  to  lie  retailed  liy  the  defend- 
ants. The  defendants  ordered,  at  different 
times,  four  car-loads  of  fresh  beef,  and  pur- 
s:i;int  to  their  af^reement,  on  rceeiiit  of  the 
bill  for  the  second  and  third  car-lojids,  and 
before  the  arrival  of  the  goods,  paid  the 
pl.ninliff  therefor  l)y  a  draft  on  New  York. 
The  referee  found  as  facts  That  the  iil:iiii- 
tiff  was  to  deliver  the  beef  on  board  the 
cars  at  Cliici^'o,  which  was  a  delivery  to 
the  defendanls.  ;ind  the  same  then  an<l 
there  became  the  property  of  the  defend- 
ants; that  liy  theay,reement  made  between 
the  pjirties  the  plaintiff  represented  and 
aj^reed  lo  furnish  the  defendants  lieef  that 
had  not  been  heated  before  beina:  killed; 
that  should  be  thoroushly  chilled  before 
beiii}?  loaded  on  the  cars;  that  it  should 
be  in  first-class  condition  in  every  respect, 
mill  merchantable:  that  a  portion  of  the 
meat  furnished,  iiichulinu-  all  of  the  fourth 
car-load,  had  been  heated  before  beinu; 
killed,  and  w-as  not  in  first-class  condiHon 
ormerchaut.'iblewhen  shipped  at  Chicaiio; 
that  as  to  the  fourth  car-load  the  "defend- 
ants did  all  the.v could  todispose  of  it,  nnd 
save  what  the.v  could  from  it.  after  the 
car  had  beenoiiened  several  times  on  differ- 
ent ila.vs  between  Dunkirk  and  Elniira; 
and,  liiiilin^c  they  could  not  use  it,  they 
shipped  liacU  to  tlieplaintiff  iL'.'.l'.H  pounds, 
and  nolilied  plainliif  by  wire  of  the  same, 
and  i)l;iiiitiff  immediatel.v  wired  back  that 
they  would  not  receive  it.  whereupon  the 
defendants  ordered  the  same  back  to  El- 
niira." The  referee  found,  as  a  matti-rof 
law,  that  there  was  no  warranty,  and  di- 
rected !\  jiHliriiient  to  be  entered  in  favorof 
tlieplaintiff  for  thscontroct  price.  Further 
fnrls  appear  in  the  opinion. 

(I'libricI  L.  Smith,  for  appellant.  Ilonry 
a.  liviliiflil.  for  respoinl.  111. 


PARKKn,  J.,  (after  Nt.-itlirj:  the  fncts  aa 
tihnvo.)  In  the  abseac"  of  a  warranty  as 
to  quality  anil  a  breach,  the  di'feiidant'B 
claim  for  damafreH  could  not  have  sur- 
vived the  use  of  the  property  :  for  in  siich 
case  vendees  are  bound  to  rescind  the  con- 
tract, and  return,  or  offer  to  return,  the 
goods.  If  they  omit  to  do  so.  they  will  lie 
ci,nelusively  presumed  to  have  aeijuiesced 
in  llieir  (piality.  Iron  Co.  v.  I'ope,  Ids  N. 
Y.  T.-2,  V,  N.  E.  Hep.  X',:,.  Then'fore,  if  the 
referee  was  right  in  hidding  that  there  was 
no  warranty  as  to  <iuality.  eollaterid  to 
the  contract  of  sale,  we  nerd  not  inipiire 
further,  as  the  judgment  must  be  aflinned. 
The  referee  has  fotind  the  fai-ts.  and  this 
court  may  properly  review  his  legal  con- 
clusion as  to  whether  they  amiiiinted  to  a 
warranty.  ".\  warranty  is  an  express  or 
implied  statement  of  something  which 
a  pai-ty  undertakes  shall  be  a  jijirt  of  a 
contract,  and,  though  part  of  the  con- 
tract, collateral  to  the  expressed  objert 
of  it."  2.Sehouler,  Pers.  Prop.  CJd  Ed.)  § 
>^21.  All  contracts  of  sale  with  warranty, 
therefore,  must  cont:iin  two  independent 
stipulations:  /'7r.vf,  an  agreeim-nt  ft>r  the 
tr.iiisfcr  of  title  and  possession  from  the 
vendor  to  the  vendee;  secornJ.  a  further 
agreement  that  the  suliject  of  the  sale  has 
certaiiKiualilies  nnd  conditions.  It  is  not 
necessary  that  in  the  collateral  agre<'ment 
theword  "  w;irranty  "  shotdd  beused.  No 
particular  phra.seology  is  reipiisite  to  con- 
stitute a  warranty.  "  It  must  be  n  re|irc- 
sentation  which  the  vendi-e  relies  on.  and 
which  is  understood  by  the  parties  as  an 
absolute  assertion,  and  not  the  expression 
of  an  oiiinion."  Society  v.  Lawrence,  4 
Cow.  440.  It  is  noc  necessary  that  the 
vendor  should  have  intended  the  represen- 
tation to  constitute  a  warranty.  If  the 
wilting  cont.'iins  that  which  amounts  to  a 
warranty,  the  vendor  will  not  be  permit- 
ted to  say  that  he  did  not  inteiul  what  liis 
language  clearly  and  explicitly  di-elart>s. 
Hawkins  v.  Peinberton,  rd  N.  Y.  l!»s.  In 
that  casethedefend.-ints  purchased  at  auc- 
tion an  article,  relying  upon  the  repn-sen- 
tation  of  the  auctioneer  that  it  Wiis  "  blue 
vitriol."  It  was  in  fact  "Salzburger  vit- 
riol," an  article  much  less  valuable.  In  an 
action  brought  against  the  pundiaser.  the 
trial  court  directed  a  verdict  for  the  plain- 
tiff. This  was  held  to  beerror.  becaii.se  the 
representation  at  the  sale  aiiiouiited  to  a 
warranty.  .Judge  E.Mti..  in  di'livering  the 
opinion  of  the  court,  after  colljiting  and 
di.scussing  the  authorities  upon  the  sub- 
ject of  warranty,  said  :  "The  mon-  rtrcnt 
cases  hold  that  a  positive  atlirmatlon,  un- 
derstood and  relied  upon  us  such  by  the 
vendee,  is  an  express  warranty."  In  Keiii 
V.  Friedman.  17  Wkly.  Dig.  4sl.  .ludge 
LK.\it.\i;ii  in  his  opinion  says:  "Tlu>ivcan 
he  no  diff -rence  between  an  executory  con- 
tract to  .sell  and  deliver  goods  of  such  nnd 
such  a  (piality  and  an  executory  contract 
to  sell  and  deliver  goods  which  the  vetulor 
warrants  to  be  of  such  and  such  a  quality. 
The  former  is  as  much  a  warr.'inty  Jisllu"  lat- 
ter." The  court  of  appeals  subsequently 
allirmed  the  judgment  of  thegeiu-nil  term, 
(lul  N.  Y.  (llti,  3  N.  E.  Kep.  IKLV  l  In  White 
v.  Miller.  71  N.  Y.  Us.  frequently  r(>fern«d 
to  as  the"  llristol  Cabbage  Seed  Case,"  the 


296 


FAIKBANK  CANNING  CO.  v.  METZGER. 


court  say :  "  Tbo  case  of  Hawkins  v.  Pem- 
bevton,  51  N.  Y.  lO.S,  adopts,  as  the  law  in 
this  state,  the  doctrine  upon  tliis  subject 
now  prevailing  elsewliere,  tliat  <i  sale  of 
a  chattel  by  a.  particular  description  is  a 
^varranty  that  the  article  sold  is  of  a  kin<l 
specified."  .So,  too,  a  sale  liy  sample  im- 
ports a  warranty  that  the  (lualit.v  of  the 
goods  shall  beequal  in  every  res])ecjt  to  the 
sample.  Brigg  v.  Hilton,  99  N.  Y.  517,  3 
N.  E.  Kep.  51,  and  cases   cited. 

No  w,  in  the  case  before  us,  the  defendants 
undertook  to  purchaseof  the  plaintiff  fi-esh 
dressed  beef,  to  be  wholesaled  in  part,  and 
the  T'esidue  retailed  to  their  customers. 
The}'  endeavored  to  procure  good  beef. 
Not  only  did  they  contract  for  beef  that 
was  clean,  well  cIicsm'iI.  in  first-class  con- 
dition in  every  respect,  and  merchantable, 
and  that  was  thoroughly  chilled  before  be- 
ing loaded  on  the  cars,  but,  further,  that 
they  should  not  be  given  beef  that  had 
been  heated  before  being  killed.  When, 
therefore,  the  ])laintilf  idaced  in  a  suitable 
car  beet  well  drcs.sed  au<l  clean,  and  of  the 
general  descrijition  given  in  defendants' 
order,  it  had  made  a  delivery  of  the  mer- 
chandise sold,  and.  by  the  terms  of  the  ccjn- 
traet,  was  entitled  to  be  paid  as  soon  as 
the  bill  should  reach  defendants,  and  be- 
fore the  arrival  of  the  beef  made  an  exam- 
ination by  defendants  possible.  But  there 
was  another  collateral  engagement,  and 
yet  forming  a  part  of  the  contract,  which 
the  plaintiff  had  not  performed, — an  en- 
gagement of  much  consequence  to  the  de- 
fendants and  their  customers,  because  it 
affected  the  quality  of  the  meat.  Upon  its 
performance  or  non-performance  depended 
whether  it  should  be  wholesome  as  an  ar- 
ticle of  food.  It  was  of  such  a  character 
that  defendants  were  obliged  to  rely  solely 
upon  the  representation  of  the  plaintiff  in 
resi)ect  thereto.  The  plaintiff  orits agents 
selected  from  their  stock  the  cattle  to  be 
.slaughtered.  No  one  else  knew,  or  could 
know,  whether  they  were  heated  and  fever- 
ish. In.ipection  immediately  after  placing 
the  beef  in  the  car  would  not  determine  it. 
That  collateral  engagement  consisted  of  a 
representation  and  ay,i-ccmi'iittliat  plaintiff 
would  deliver  to  the  dcfend.-uits  beef  from 
cattle  that  had  not  been  heated  before  be- 
ing slaughtered.  Such  representation  and 
agreement  amounted  to  an  express  war- 
ranty. The  referee  found,  as  a  fact,  "  that 
the  meat  had  been  heated  before  being 
killed;"  therefore  therewasa  breach  of  the 
warranty,  and  the  defendants  are  entitled 
to  recover  their  damages  by  way  of  coun- 
ter-claim, unless  such  right  n)ust  Ijedeemed 
to  have  been  subsequently  waived. 

It  is  not  necessary  for  the  dis[)osition  of 
this  case  to  decide,  and  therefore  it  is  not 
decided,  whether  a  warranty  is  implied, 
in  all  cases  of  a  sale  of  fresh  dressed  meat, 
by  the  party  slaughtering  the  animals, 
that  they  were  not  heated  before  being 
killed;  and,  as  some  of  my  associates  are 
averse  to  any  expression  whatever  upon 
that  question  at  this  time,  what  is  said 
must  be  regarded  as  an  individual  view, 
rather  than  that  of  the  court.  My  atten- 
tion has  not  been  called  to  a  decision  in 
this  state  covering  that  iirecise  question. 
It  was  determined  in  Divine  v.  McCormick, 


.50  Barb.  116,  that, in  the  sale  of  a  heifer  for 
immediate  coiisiiiiiiition,  a  warranty  that 
she  is  not  dise.iseil  ,ind  unfit  for  food  is 
implied.  That  decision  is  well  founded  in 
principle,  and  is  in  accordance  with  a  sound 
public  polic.y,  which  demands  that  the 
doctrine  of  caveat  emptor  shall  be  still 
further  encroached  upon,  rather  than  that 
the  public  health  shall  be  endangered.  I 
see  no  reason  for  applying  the  rule  to  one 
who  slaughters  and  sells  to  his  customers 
for  immediate  consumption,  and  deny- 
ing its  ai)plication  to  one  who  slaughters 
and  sells  to  another  to  be  retailed  by  him. 
In  each  case,  it  is  "fresh  meat  intended  for 
immediate  consumption. 

The  rule  is  well  settled,  by  the  courts  of 
last  resort  in  many  of  the  states,  that  a 
vendor  of  an  article,  manufactured  by  him 
for  a  jiarticular  purpose. imiiliedly  warrants 
it  jigainst  all  such  defects  as  arise  from  his 
unskilUulness  eitlu-r  in  selecting  the  mate- 
rials, or  in  putting  them  together  and 
adapting  them  to  the  required  purpose. 
See  cases  cited  in  IS  .\1I).  Law  J.  3l'4.  One 
who  prepares  meat  for  the  wholesale 
market  may  be  said  to  come  within  that 
rule;  because  he  purchases  the  cattle,  de- 
termines whether  they  are  healthy  and  in 
proper  condition  for  food,  and  upon  his 
skill  in  dressing  and  preparing  the  meat  for 
transportation  a  long  distance  its  quality 
and  condition,  as  an  article  of  diet  for  the 
consumer,  largelj'  depends.  In  two  of  the 
states  at  least,  it  is  held  that,  where  per- 
ishable goods  are  sold  to  be  shipped  to 
a  distant  market,  a  warranty  is  implied 
that  they  are  properly  i)acked  and  fit  for 
shipment,  but  not  that  they  will  continue 
sound  for  any  particularor  delinite  i)eriod. 
Mann  v.  Everston,  'A'l  Ind.  355;  Leoi^old  v. 
Van  Kirk,  27  Wis.  152. 

The  respondent  insists  that  the  act  of  de- 
fendants' agent  in  selling  some  00  quarters 
of  beef,  before  thecar  reached  IClmira,  when 
the  defendants,  aftei-  making  a  personal 
examination,  imuicdiately  shi])ped  that 
which  remained  unsold  to  the  plaintiff,  con- 
stituted a  waiver  of  their  claim  for  dam- 
ages. It  is  undoubtedly  the  rule  that  in 
cases  of  executoi-y  contracts,  for  the  sale 
and  delivery  of  pc;i-sonal  property, if  thear- 
ticle  furnished  fails  to  conform  to  the  agree- 
ment, the  vendee's  right  to  recover  dam- 
ages does  not  survive  an  acceptance  of  the 
property,  after  opportunity  to  ascertain 
the  defect,  unless  notice  has  been  given  to 
the  vendor,  or  the  vendee  offers  to  return 
the  property.  Reed  v.  Randall,  29  N.  Y. 
3.58;  Beck  v.  Sheldon,  48  N.  Y.3(i5;  Iron  Co. 
V.  Pope,  IDS  N.  Y.  232,  15  N.  E.  Rep.  3.35. 
But,  when  there  is  an  express  warranty,  it 
is  unimportant  whether  thesale  be  regard- 
ed as  executory  or  in  prwseu  ti,  for  it  is  no  \v 
well  settled  that  the  same  rights  and  rem- 
edies attach  to  an  express  warranty  in  an 
executory  as  in  a  present  sale.  Day  v. 
Pool,  52  N.  Y.  41(5;  Parks  v.  Axe  Co.,  ,54  N. 
Y.  rm-.  Dounce  v.  Dow,  57  N.  Y.  16;  Brigg 
V.  Hilton,  99  N.  Y.  517,  3  N.  E.  Rep.  .51.  In 
such  cases,  the  right  to  recover  damages 
for  the  breach  of  the  warranty  survives  an 
acceptance,  the  vendee  beingunder  no  obli- 
gation to  return  the  goods.  Indeed,  his 
right  to  return  them,  upon  discovery  of  the 
•x-cach.  is  questioned  in  Day  v.  Pool,  su- 


FAIRBANK  CANNING  CO.  v.  METZOER. 


297 


pra.  And  Judge  Dam-oktm  in  Hrigg  v. 
Hilton,  supra,  after  a  careful  review  of  the 
leading  autlioritieH  upon  the  (juention, 
Htalos  the  rule  aw  follows:  "  Where  there  is 
an  express  warranty,  it  is,  If  untrue,  at 
once  broken,  and  the  vendor  becomes  lia- 


ble in  damages,  but  tlie  purchaser  cannot, 
for  that  reason,  either  refuse  to  accept  the 
goods  or  return  them."  It  follows,  from 
the  views  expressed,  that  the  judgment 
should  be  reversed.  All  concur,  except 
I'OLLKTT,  C.  J.,  not  sitting. 


ll 


FARLEY  c.  LINCOLN. 


290 


FARLEY  et  al.  v.  LINC(JLN. 

(51  N.  H.  577.) 

Supreme   Judicial    Court   of    New    Hampshire. 
Merrimacli.    June,  1872.  I 

Replevin  l)y  Farley,  AiiiHdcn  &  Co..  iiier- ! 
chnntH  of  BoHton,  tt)  rec()vercertuiiij;oo(lH  [ 
ill    the    poMschKloii    of    Joliii    U.    Liiieoln.  i 
PlaintiffK    cluimrd    thai    the  fjooilH  were 
friiutlulciitly    purchaKed    of   them  im  April 
is,   ISTO,   liy   one   A.    15.   Suiiliorii,   a  mer- 
chant ill  Siincook,  N.  11.,  on  a  credit  of  ;ii) 
days,  and    that    on    account  of  hucIi  fraud 
they  were   entitled    to    leclaim   the   ^oodH 
an<i   declare    the    ti-anwaction    void.      On  ' 
Aprd   1'7,  1^7(1,  Sanborn    nwide   an    anKi^'i- 
nient  uniler  the   innolvent    act    to   defend- 
ant, wlio,  tof;ether  with    Sanhorn,  on    de- 1 
inand,  refused  to  deliver  the  j^oodw. 

Tappan  &  Mu}<ridj;e,  for  plaintiffs. 
MarHhall  &  Chase,  for  defendant. 

LAOD,  J.  SupixJiiinjj  tlie  fuctH  to  he  as  i 
claimed  by  the  plaintiffs,  we  think  they  j 
mi^ht  maintain  trespass  or  replevin 
against  Sanborn  for  the  floods,  notwith- 1 
standiii)?  he  came  to  the  possession  of 
them  in  the  first  place  bj' means  of  a  fruud- 
iilenthale.  And  this  stands  well  enough, 
upon  tlie  (ground  lliat  there  ne\erwasany 
real  contract  of  sale  bet  ween  the  jjarties 
by  which  the  plaintiffs  were  bound.  San- 
born acquiied  no  rights  in  the  property 
Ijy  the  form  of  a  sale  which  was  }i;one 
thriMmh  with,  and  hence  Ins  first  as  well 
as  every  sulisequent  net  of  dominion  over 
it  amounted  ton  trespass, if  the  defendant 
elected  so  to  treat  it. 

.\(i  serious  question  is    made   by  the   de- 
feiulanl's   counsel    but    this  would    be  so; 
and    it   is   admitted  furtlier,  that,   upon  a 
demand  and    refusal,  the    plaintiffs    nii^ht 
maintain  trover  or  detinue  for   tlic   Koods 
anainst  this  defendant.     lint    it   Is  insisted  I 
tiiat.inasimicli  as  it  does  not  api)ear  that! 
the  defendant  was   a    party  to   Sanliorn'sj 
fraud,  or  had  knowledjie  of   it,  his    taking 
by   assi(<:nnien t   from    Sanliorn   cannot  be 
rcKai'ded  as  wronnful,  althontth   .Sanliorn 
had  no  title,  and  therefore  that    the   pres- 1 
ent  action  will  not  lie  aj^ainst    him.     'I'liis 
is  the  importatit  ((uestion  in  the  case,  anil 
if  it    were   to   be  decided  upon    authority  [ 
alone,  it  woulil  undoubtedly  present    con- 1 
sider.ible  didiculties.     See  Barrett  v.  War- 1 
ren.  'i   Mill,  :riil.  and    Stanley  v.  (jaylord.  1 
Cusli.  .'):!(■>.     In  these  two  cases  the  author- 
ilii's  on  l)oth  sides  of  the  question   are  col- 
lected, and    the  whole  subject    very    ably 
discussed.     The  New  York  court  came  out 
one  way,  holding  that  tri'spass  would  not 
lie   ajjainst   a   person    who   comes  to    the 
possession  of  Koods  by  delivery,  and  with 
out   fault    on    his    part,  e.  fi..  an    innocent 
bailee   of   the  wrongdoer,   Cowen,   J.,  ilis- 
EtentiiiK:    while   the   Massachusetts  court 
held   exactly   the  contrary,  Wilde,  J.,  dis- 
BenliiiK. 

To  maintain  trespass  or  replevin,  there 
must  be  a  wrongful  taking;  and  the  ques- 
tion is,  whether  tlie  taking  by  the  defend- 
ant here  was  wroiiRful  in  a  legal  sense, 
as  ngaiiiKt  the  plaintiffs.  At  the  time  of 
the  assignment  the  plaintiffs  were  the  ab- 
solute general  owners,  nn<l    were   entitled 


to  the  Immediate  possession  of  thegoodn. 
The  assignment  passed  no  title,  and  con- 
ferred no  riilit  Ufion  the  defendiint  In  re- 
spect to  the  goods  as  ngaiiiHt  the  plain- 
tiffs, for  the  obvious  reason  tliiit  S'inliorn 
had  no  riglit  <ir  title  in  them  as  against 
the  plaintiffs  which  he  could  confir  upon 
any  liody.  This  being  so.  the  lirst  act  of 
possession  e.\ercised  liy  theili'fendant  over 
them  was  inconsistent  with  an<l  in  deroga- 
tion of  the  iilainliff'sright.  .Misolu'eown- 
I'l-ship  draws  possession  after  it.  If,  then, 
the  defeiidiint's  act  in  taking  thi-  (losses- 
sion  was  an  interference  with  the  pl:iln- 
tiffs'  right  of  actual  possession  growing 
out  of  theirownership.  It  was  in  legaleffect 
a  ilisturbance  of  their  constructive  posses- 
sion. 

The  defendant's  act  in  assuming  domin- 
ion over  the  property  was  none  the  loss 
an  invasion  of  the  plaintiffs'  right,  and 
none  the  less  a  trespass,  bernusehedid  not 
intend  a  wrong,  or  know  that  he  was 
committing  one.  An  encroachment  ti|ion 
a  legal  right  must  constitute  u  legal 
wrong;  and  it  is  familiar  law,  tli:it  inten- 
tion is  of  no  account  In  a  civil  action 
brought  by  one  man  to  recover  damage 
for  a  wrongful  inteiference  with  his  pr<q)- 
erty  liy  another.  The  lawgivis  the  plain- 
tiff compensation  for  the  injury  he  hassus- 
tained.  whether  the  defendant  intended 
such  injury  or  not.  Lideed.  a  large  pro- 
portion of  trespasses,  especially  to  land, 
are  doulitless  conimitted  tlirough  inad- 
vertence or  mistake,  without  wrongful  In- 
tent, and  without  knowledge  on  the  part 
of  tile  wrong  doer  that  he  has  over- 
stepped his  right. 

How  does  this  case  differ  in  princifde 
from  that  of  a  person  who,  under  a  mis- 
take as  to  the  location  of  the  lioundaries 
of  his  land,  encloses  a  piece  of  adjoini.ig 
land  of  which  the  real  owner  has  never 
hud  actual  possession,  and  cultivates  it  in 
the  mistaken  belief  that  it  Is  his  own? 
One  act  is  undoubtedly  as  free  from  the 
taint  of  moral  wrong  as  tlie  otiier.  In 
both  alike  there  is  only  a  disturbance  of 
a  possessiiui  iiurely  constructive.  The  on- 
ly distinction  is,  that  in  one  case  the  sul>- 
ject  is  land  while  in  the  other  it  is  a  chat- 
tel;  ami  I  do  not  si-e  that  this  makes  any 
more  differenie  tli<iii  if  the  properly  inter- 
fered with  wi-re  in  one  ca.se  a  cow,  while 
in  the  other  it  was  a  horse. 

In  Stanlev  v.  Cavlonl.  bef<ire  cited,  the 
case  of  Hyde  v.  .Noble,  i:!  N.  H.  -I'.M,  isquot- 
ed  as  an  authority  fully  sustaining  the 
doctrine  there  laid  down,  llyile  v.  .N'olde 
was  trover  by  the  owner  of  a  cargo  of 
lumber  against  Nolile  and  another,  who 
had  bought  and  taken  the  delivery  <if  n 
portion  of  it  from  the  plaintiffs  l)ailr«> 
while  tr:ms|iorting  it  under  a  contract 
from  Ilallowell  and  (Jardiner  in  Maine  to 
Wevmoutli  in  Massachusetts.  In  deliver- 
iiig  the  opinion  of  the  court,  Parker,  ('.  J.. 
K„yK._"The  purchase  by  the  defenilants, 
taking  possession  as  they  appear  to  h'lve 
done,  and  holding  it  as  their  own  proper- 
ty, was  a  conversion.  They  received  the 
p'ossession  from  one  who  had  no  nuthor- 
itv  to  deliver  it  to  them,  under  a  sale 
which  purported  to  vest  the  j.ropcrty  In 
them:  and  thev.  bv  the  purchase,  under- 
took to   control  it  as  their  own  property. 


300 


FARLEY  V.  LINCOLN. 


This  was  an  assumption  of  power  over  it, 
infonsistent  with  the  rights  of  the  plain- 
tiff. Purchasing  the  property  from  one 
who  had  no  right  to  sell,  and  holding  it 
to  their  own  use,  is  a  direct  act  of  conver- 
sion, without  an.v  demand  an<l  refusal: 
their  posses.sion  was  unlawful  in  its  incep- 
tion, by  reason  of  the  want  of  authority 
in  Keiiniston  to  make  the  transfer.  It 
is  only  where  a  party  obtains  the  posse.s- 
Bion  lawfully,  that  it  is  neee.ssary  to  show 
a  demand  and  refusal."  The  same  thing 
in  substance  lias  been  said  in  several  other 
cases  in  this  state.  Doty  v.  Hawl<ins,  (5 
-N.  H.247;  Lovejoy  v.  Jones,  30  N.  H.,  at 
p.  ]()9;  Cooper  V.  Newman,  4o  N.  H.  33!*,  and 
authorities  cited. 

The  facts  stated  in  Hyde  v.  Noble  show 
thatthere  was  a  demand  and  refusal  before 
tlie  commencement  of  the  suit;  but  tliat 
case  has  been  constantly  referred  to,  as  well 
in  this  state  as  in  other  jurisdictions,  to  the 
point  broadly  laid  down  in  the  opinion  of 
Chief  Justice  Parker,  that  trover  without  a 
demand  liesin  favorof  theownerof  achat- 
tel  against  one  who  has  come  to  the  i>os- 
session  of  it  by  purchase  from  one  having 
no  right  to  sell;  and  it  would  doubtless 
be  a  surprise  to  the  profession  to  learn 
that  such  is  not  the  law  here.  We  think 
it  is  the  law,  and  that  it  rests  upon  rea- 
sons quite  satisfactory  and  sound.  Par- 
sons V.  Webb,  S  Greenl.  38;  Galvin  v. 
Bacon,  2  Fairf.  30;  Stanley  v.  Gaylord,  1 
Cusb.  536; — and  see  the  able  and  instruct- 
ive dissenting  opinion  of  (owen,  J.,  in 
Harrett  V.  Warren,  3  Hill,  at  p.  3.".1.  But 
it  is  very  obvious  that  there  was  no  con- 
version in  the  case  of  Hyde  v.  Noble,  un- 
less the  original  taking  was  a  conversion  ;. 
and  that  taking  was  not  a  conversion  un- 
less it  was  wrongful.  If,  therefore,  it  was 
not  wrongful,  a  demand  and  refusal  would 
have  been  necessary  before  trover  could 
be  maintained.  But  "  whenever  the  tak- 
ing of  goods  is  wrongful,  trespass,  replev- 
in, and  trover  without  a  demand  are  con- 
current lemedies  for  the  owner,  if  he  has 
the  right  of  immediate  possession."  Met- 
calf,  J.,  in  Stanley  v.  (iaylord,  at  p.  ,=)4(!, 
citing  Wilkinson  on  Replevin,  2;  Paugburu 
V.  Patridge,  7  Johns.  143;  1   Chit.  PI.   176; 


IWilbraham  v.  Snow,  2  Wms.  Saund.  47k, 
I  note.  That  being  so,  the  doctrineof  Hyde 
i  V.  Noble  is  decisiveof  thepresontcase;  for, 
'according  to  that  case,  trover  without  a 
'demand  would  lie  here,  and  therefore  the 
'plaintiffs  might  bring  eitherof  the  concur- 
j  rent  I'emedies,  trespass  or  replevin,  at 
I  their  election. 

!      It  is  undoubtedly  settled  that, inasmuch 
I  as   a   fraudulent  sale  is  voidable  only,  the 
vendor  cannot  set  it  aside  to  the  injury  of 
third  persons  whoha venindeexpeuditures 
under   it,   on    the  supposition    that   it    is 
I  binding.     And    so   a    purchaser   for  value, 
!  without  notice  from    the   fraudulent    ven 
I  dee,  will   acquire  a   got»d   title.     Grout  v. 
Hill,   4   Gray,  369;    Trull    v.     Bigelow,    16 
Mass.  406;  Bufflngton  v.  Gerrish,  15  Mass. 
I.i6;  Wliite  V.  Garden.  10   C.   B.   91"):  Root 
I  V.  French,  13  Wend.  570;  Mowrey  v.  Walsh, 
|8Cow.  2:3S.     But  no   such   question   arises 
I  here.     The  defendant  was  not  a  purchaser, 
1  and  hud  made  no  expenditures   under   the 
fraudulent  sale.     At  the  utmost,  his  rights 
in  respect    to   the   property  could   not   be 
larger  than  those  of  an  attaching  or  judg- 
ment creditor.     And  the  cases  allare,  that 
such   creditor   acquires   no    title  that  will 
hold  against  the  true   owner,  the   vendor. 
Load  v.  Green,  15   M.  &  W.  216;  Bristol  v. 
Wilsmore,!  B.&  C.  514;  Van  Cleef  v.  Fleet, 
15  Johns.    147;  Alowrev  v.  Walsh,  S  Cow. 
23S;  Root    V.    French,  13   Wend.   575;  Buf- 
flngton v.  Gerrish,  15   Mass.  156.     "An    as- 
signee   takes   the   thing    assigned,  subject 
to  all  the  equity  to  which  theoriginal  par- 
ty was  subject.''     Ld.    Manf field,  in    Pea- 
cock V.  Rhodes,  2  Dougl.  ()36. 

We  have  not  thought  it  necessary  to  go 
into  a  minute  and  extended  discussion  of 
the  question  raised  in  this  case.  The  au- 
thorities to  which  reference  has  been  made 
furnish  an  ample  and  exhaustive  review 
of  the  whole  subject,  and  all  the  authori- 
ties. From  a  careful  examination,  we  are 
brought  to  the  conclusion  that  the  taking 
by  the  defendant  was  in  the  eye  of  the  law 
wrongful,  and  a  disturbance  of  the  plain- 
tiffs' constructive  possession;  and,  there- 
fore, that,  upon  the  facts  claimed,  the  ac- 
tion may  be  tuaintained. 
Case  discharged. 


FARMERS'  PHOSPHATE  CO.  v.  GILL. 


803 


FARMERS'  PnOSPHATE  CO.  v.  GILL. 

(10  Atl.  Rep.  214,  09  Md.  r..37.) 

Court  of  Appcal-s  of  .Maryland.    Dec.  14,  1SS8. 

Afipoal  from  superior  court  of  Balti- 
moip  city. 

Action  of  trover  by  the  Formers'  PIioh- 
phate  C'cjnipuny  oRuinst  John  Gill,  iih- 
Hifinee  of  SymiMKton  Bros.  &  Co.  .Iiiili>- 
ment  for  defendant,  unil    plaintiff  appeals. 

liefore  MILLKK,  IRVING,  BltYAN,  and 
MeSUKRRY,  .IJ. 

Fielder  C.  Slinglutf,  for  appellant.  Wm. 
A.  I'isher  and  D.  K.  Este  Fisher,  for  ap- 
pellee. 

MILLKU,  J.     On    the  4th   of  June,  18S7, 
the   Hrni   of    Symington    IJroH.   &  Co.,    of 
15altimore,    manufuctiirern    of    fertilizeris, 
made   an  assignment  of  all  their  property  | 
to    .Mr.  John  Gill  for    the    lieiielit   of   then- 
oreditors;  and  the  (iiiestion    in  this  case  is 
whether   a  cargo  of  South    Carolina  river 
Htock  phosiihate   passed    to   the   assignee, 
under   this   aHsiirnmeiit.     The  (inestion   is  j 
raised  l)y  an  action  of  trover   brought   by  , 
the    Farmers'    Phosphate    Company,  the  j 
vendor   of   the    Symingtons,  against    Mr.  ; 
Gill,  their  assignee,  for   the  conversion    of  i 
this   property.     The  facts   essential    to  be  | 
stated,  and    about  which    there  seems    to  I 
be  no  dispute,  are   as  follows:     TIk-  con-; 
tract  of  sale,  made   in    Baltimore   on    the! 
l.")tli   of    February,  lss7,  by    Mr.  Cottninn, 
who  was  the   broker  for  l)oth  vendor  and 
vendees,  is  in  these  terms:  "Sold  to    Mess. 
Symington    Bros.    &   Co.,   for  account    of 
Farmers'  Phosphate  Co.,  a  cargo  of  about 
live  (500)  hundred  tons  undried    river  rock 
phosphate,    delivered    along-side    buyer's 
vessel  at    Dale's   creek    at    $i.')()   i)er    ton 
1!,L'40   Ins.;    for  delivery    latter    part    this 
month  or  1st  t)f  March,  ISs".     Hock    guar- 
antied  (U)   per  cent,  bone  phos.  of  lime  on 
dry    basis.     Should   rock  run  below  (10  i)er 
cent.,     proiinrtionate    allowance     to     be 
made.    Hock  to  lie  weighed  here  as  landeil, 
by   sworn    weigher,   at    seller's-    expense. 
Payal)Ie   by    note  to  buyer's  order  at  four 
(4)  months   from   date   of    bill   of  lading, 
adding   interest,  or  cash   on  arrival  here. 
.L  II.  Cottman."     The   Symingtons   then, 
on    the    12th  of    March.  ISsT,   chartered    a 
vessel   to    bring   this    cirgo    from    Dale's 
creek,   Coosaw    river,  S.  C,  to   Baltimore, 
the  charterers   paying  freight,   etc.     The 
vessel  arrived    at    Dale's  creek  the  latter 
part  of  April,  and  completed   the  lading  of 
lier  cargo  on  or   l)cf<>re   the  7th   of    May. 
On   this     last-mentioned   day    the  master 
made   out    a  bill  of  lading,  whereby  he  ac- 
knowledged the  receipt   of  the  cargo  from 
the   Farmers'  Phosphate   Company,  to  be 
ilelivered  at   Baltimore  "  unto   Symington 
Brothers    and   Co.,  or  to   their   assigns." 
This  the   master   delivered    to    the    phos- 
phate   company,    who    indorsed    it,  "  De- 
liver to    the  order  of  J.  11.  Cottman,"  (the 
broker  who  effected  the   sale.)  and    he   in- 
dorsed it  "Deliver  to  the  ordM-  of  .Syming- 
ton Brothers  and  Co.."  and  deH-'cred  it  to 
them    on    the   14th  of  May,  one  wtxk  after 
it«  date.     It  also  ajtpears   that   the   Sym- 
ingtons insured  the   cargo   for   their   own 
henetit.     The    vessel   arrived  at  Baltimore 
on    the    24th   of    May,    and    immediately 


commenceil  discharging  her  cargo  at  the 
wharf  of  the  Symingtons,  they  having 
paid  the  freigiit  thereon.  As  tlie  dis- 
charge |)roceedeil  the  rock  was  wiiglied, 
and  there  was  also  an  analysis  of  it  made 
by  a  chemist,  which  showed  that  it  was 
above  the  standard  (i.xed  by  the  contract. 
The  discharge  was  comi)leted  on  the  'Mnt 
of  .May,  and  on  tlie  sai!ie  day  Cottman 
made  and  sent  to  the  Symingtons  a  bill 
for  the  phosphate.  >iot  receiving  any  re- 
plj'  for  several  days,  he  telephoned  there 
on  the  morning  of  the  day  on  which  they 
had  executed  their  assignment,  to  know 
whether  they  were  going  to  pay  for  the 
cargo  in  cash  or  by  note,  and  received  a 
reply  that  they  liad  sometiiing  to  say  to 
him  on  the  subject.  lie  immediately 
w-ent  to  their  ollici-.  ami  was  surprised  to 
learn  the}'  had  made  an  assignment.  He 
then  asked  them  to  give  him  their  note 
for  the  cargo,  l.'ut  they  declined  to  do  this, 
as  they  did  not  thiidi  it  \V()uld  be  right 
for  thi-m  to  do  so  alter  they  had  asr>igned 
their  property  for  the  benelit  of  all  their 
creditors.  Subseiiuently,  on  the  Dtli  of 
June,  the  [)hosphate  company,  by  their 
counsel,  made  demand  on  .Mr.  Gill,  the 
assignee,  for  the  iiroperty,  and  on  the  fol- 
lowing day  the  .Symingtons  wrote  an<l 
mailed  a  letter  to  the  con:pany,  inclosing 
their  note  for  the  cargo,  made  out  in  ac- 
cordance with  the  terms  of  the  contract 
of  sale;  but  the  company,  declining  to  re- 
ceive this  note,  returned  it  to  the  assignee, 
and  l)rought  this  action  of  trover. 

Upon  thcs(-  facts  the  i|ucBtion  is,  was 
the  title  to  this  propei-ty  vested  in  the 
Symingtons  when  they  executed  tlieir 
ussignnicnt.or  wasit  still  in  the  phosphate 
company,  the  vendor?  The  (picstion  is 
an  interesting  one,  and  has  been  exceed- 
ingly well  argued.  On  the  part  of  the  ap- 
pellant company  it  is  contended  that  by 
the  terms  of  the  contract  the  sale  is  con- 
ditional, anil  that  no  title  vested  in  the 
liuyers  Ijecause  the  condition  of  paying  by 
note  or  in  cash  hail  not  been  complied 
with  or  waived.  On  the  other  hand, coun- 
sel for  the  appellee  deny  that  such  is  the 
proper  construction  or  effect  of  the  con- 
tract, and  contend  thot  the  title  passed 
by  delivery  of  the  cargo  on  board  the  buy- 
ers'vesselnt  Dale's  creek,  and.  if  not  by 
such  delivery  alone,  it  clearly  did  wlien 
accompanied  or  followed  by  insurance  for 
the  liuvers'  lienefit.  and  transmission  to 
them  of  the  bill  of  lading.  We  think  the 
law  is  well  settled  that  where  a  l)uycr 
purchases  or  orlers  a  specllic  (|uantlty  of 
goods  to  be  shipped  to  him  from  a  distant 
place,  and  the  seller  segregates  and  ap- 
propriates to  the  contract  the  specilied 
quantity  bv  delivering  them  ti.  a  vessel 
designated  by  the  buyer,  or,  in  the  ab- 
sence of  such  designation,  to  a  common 
earlier,  the  mere  fact  that  the  conlroct 
contains  a  stipulation  that  they  arc  to  bo 
paid  for  liv  note  or  in  cash  on  arrival, 
does  not  iireveat  the  title  from  passing, 
or  nake  either  payment  or  arrival  a  con- 
dition iirecedent  thereto.  In  such  case  tho 
goods  become  the  property  of  the  vendtv, 
and  are  at  his  risk  from  the  time  they  are 
put  on  board  the  vessel.  .Magruder  v. 
Gage,  :i:!  Md.  :144  ;  .-\ppleman  v.  Michael.  43 
Md.   2sl ;  Dultou  V.  Solomonsou,  3  Uos.  ik 


304 


FARMERS'  PHOSPHATE  CO.  v.  GILL. 


V.  584;  Fragano  v.LonK,4  Barn.  &  C.  219;  [ 
Alexander    v.   Garriner.  1  Bins-   N.   C.  671. 
In  the  case  last  cited  tliorc  was   a   stipu- 
lation in  the  contract  tliut  the  goods  were 
to   be  paid  lor  "by  a  l)ill   at    two   months 
I'/oni    the   date    of  landing."     The   goods' 
were  shipped   from  Sliyo,    in    Ireland,  to  | 
London,  and    while  in    transit   were   lost 
or  damaged    by   aliipwreck.     In  an  action 
by   the    vendor    against    the    vendee    for 
goods   bargained    and   sold,  this   term    of 
the  contract    was   relied  on  by  the  defend- 
ant ;  but   Tindal,  C.  J.,  said  "  the  object  of 
thatstipulation  was  merely  to  fix  the  time  ; 
of  payment,  and  not   to  make  tlie  landing. 
a   condition    precedent,"  and  added    that 
for  that   point   it  is  enough  to  refer  to  the 
decision    in    Fragano    v.    Long.     In    this 
view  all  the  other  judges  concurred. 

If,  therefore,  there  was  no  other  stipu-j 
lation  in  the  contract,  the  case  would  be! 
free  from  difficulty.  But  tliere  are  two 
other  clauses  introduced  for  the  purpose 
of  ascertaining  the  exact  amount  to  be 
l)aid  by  the  vendees.  The  first  stipulates 
that  the  cargo  shall  be  weighed  in  order 
to  find  out  tlie  number  of  tons  to  be  paid 
for  at  the  stipulated  price,  and  the  sec- 
ond requires  its  quality  to  lie  ascertained. 
As  to  the  latter  provision  it  must  be  no- 
ticed that  it  gives  the  vendees  no  right  to 
reject  the  rock  if  it  did  not  come  up  to  the 
prescribed  standard,  but  simply  secures 
to  them  a  proportionate  abatement  in 
the  price  if  it  fell  below  it.  What,  then, 
is  the  effect  of  these  stipulations  on  the 
transfer  i>l  title?  This  presents  the  only 
real  difficulty  in  the  case.  Where  the 
agieenient  is  for  the  sale  of  goods,  and 
also  for  the  performance  of  other  things, 
it  becomes  important  to  ascertain  wheth- 
er the  performance  of  any  of  these  things 
is  meaiit  to  precede  the  vesting  of  title  or 
not.  This  is  a  question  of  the  construc- 
tion of  the  agreement,  and  it  may  often 
happen  that  the  parties  have  expressed 
their  intention  in  a  manner  tliat  leaves  no 
room  for  doubt.  When,  ht)wever,  they 
have  not  done  so  in  express  terms,  the  in- 
tention must  be  collected  from  the  whole 
agreement,  and  for  this  purpose  (asstated 
liy  Lord  Blackburn  in  the  recent  edition 
of  his  book  on  Sales)  the  English  courts 
have,  since  the  beginning  of  the  present 
centuri',  adopted  two  rules  of  construc- 
tion, both  derived  from  the  civil  law.  The 
first  is  that,  where  by  the  agreement  the 
vendor  is  to  do  anything  to  the  goods  for 
the  purpose  of  imtting  them  into  that 
state  in  which  the  purchaser  is  to  be 
bound  to  accept  them,  or,  as  it  is  some- 
times worded,  into  a  "deliverable"  state, 
the  performance  of  those  things  shall  (in 
the  absence  of  circumstances  indicating  a 
contrary  intention)  be  taken  to  be  a  con- 
dition precedent  to  the  vesting  of  the  prop- 
erty. The  second  is  that  where  any  thing 
remains  to  be  done  to  the  gcods  for  tlie 
purpose  of  ascertaining  the  price,  as  by 
weighing,  mensuring,  or  testing  the  goods 
where  the  price  is  to  deiiend  on  the  quan- 
tity or  quality  of  the  goods,  the  perform- 
ance of  these  things  also  shall  bo  a  condi- 
tion precedent  to  the  transfer  of  the  prop- 
erty, although  the  individual  goods  be  as- 
certained, and  they  are  in  a  state  in  which 
they   ought  to  be  accepted.    The  learned 


author  approves  the  first  rule,  but  sug- 
gests that  the  second  was  hastily  adopted 
from  the  civil  la «,  without  adverting  to 
the  great  distinction  made  by  the  civil- 
ians iietween  a  sale  for  a  certain  price  in 
money  and  an  exchange  foranything  else; 
a  distinction  which  is  not  recognized  by 
the  English  law.  He  remarks  that  in  gen- 
eral, weighing,  etc.,  must,  from  the  nature 
of  things,  be  intended  to  he  done  before 
the  buyer  takes  possession  of  the  goods, 
but  that  is  (juite  a  different  thing  from  in- 
tending it  to  be  done  before  the  vesting 
of  the  property;  and  he  intimates  very 
strongly  that  in  his  judgment  this  second 
rule  has  no  foundation  in  reason.  2 
Blackb.  Sales,  (2d  Eng.  Ed.)  127,  12S.  The 
view  thus  taken  by  Lord  Blackburn  is 
supported  by  the  very  vigorous  opinion 
of  Cockbnrn,  C.  J.,  in  Martineau  v.  Kiteh- 
ing,  L.  R.  7  Q.  B.  449,  in  which  he  declared 
he  would  not  give  way  to  a  rule  which 
appeared  to  him  to  militate  against  prin- 
ciple and  to  be  inconsistent  with  common 
sense  and  convenience;  and  he  insisted 
that  if  you  can  gather  from  the  whole  cir- 
cumstances of  the  transaction  that  the 
buyer  and  seller  intended  that  the  prop- 
erty should  i)a.ss  and  the  price  should  be 
afterwards  ascertained  by  measuring  or 
weighing,  there  was  nothing  in  principle, 
in  common  sense,  or  practical  conveni- 
ence to  prevent  that  intention  from  hav- 
ing effect.  The  other  judges  did  not  dis- 
sent, l)ut  thought  the  case  before  them 
could  he  decided  on  other  terms  of  the  con- 
tract, without  determining  whether  there 
was  any  inexorable  rule  of  law  that  the 
property  will  not  pass  where  the  price  or 
amount  to  be  paid  remains  to  be  ascer- 
tained by  weight  or  measurement. 

In  this  country  Mr.  Newmark,  in  his 
recent  work  (;n  Sales  of  Personal  Prop- 
erty, after  stating  the  English  rule,  sub- 
jects it  to  the  qualification  th;\t  it  applies 
incases  where  there  is  no  evidence  tending 
to  show  the  intention  of  the  parties  to 
make  an  absolute  and  com[)lete  sale  with- 
out perform.ance  of  the  acts  of  weighitig 
or  7neasuriag.  Newm.  Sales,  §  74.  We 
have  also  American  decisions,  by  courts 
of  the  highest  authority,  which  h<jld 
broadly  that  the  performance  of  these 
acts,  where  provided  for  in  the  contract, 
is  not  essential  to  the  transfer  of  title. 
Such,  as  we  understand  it,  is  thedecisicm 
of  the  supreme  court  in  Leonard  v.  Davis, 
1  Black,  47(i.  In  that  case  there  was  a 
sale  l)y  written  contract  of  a  large  quan- 
tity of  pine  logs  lying  in  and  near  a  boom, 
which  it  was  supposed  would  makeabout 
1,444,000  feet  of  luml)or  in  board  measure. 
The  contract  specified  one  price  per  thou- 
sand for  those  logs  that  wereafloat  in  the 
boom,  and  another  for  those  on  the  bank 
and  in  the  marsh  near  the  boom.  It  was 
also  a  part  of  the  contract  that  the  logs 
should  be  counted,  measured,  and  scaled 
bj'  the  boom  master.  The  suit  was  by 
the  vendors  against  the  vendees  upon  this 
contract  for  the  purchase  money  of  all  the 
logs.  The  court  below  instructed  the 
jury  that  the  contract  was  executory, and 
that  the  title  did  not  pass  until  the  logs 
had  been  measured;  but  the  supreme 
court  reversed  this  ruling,  and  held  that 
it  was  a  sale  without  condition,  that  the 


FARMEUS'  PHOSPUATE  CO.  v.  GILL. 


SOS 


inensurement  was  simply  to  ascertaiu  the 
jimomit  to  l)e  i)Oi(l  by  the  vendeeB,  and 
that  llie  tiUc  to  tlic  Iorh  pastiPd  to  tlicm 
aH  HOOK  HH  the  foil trni't  was  HiKiied  and 
there  had  been  a  Hyniboliial  delivery  there- 
iiiidiT.  Af-ain,  in  Hatch  v.  Oil  Co.,  100  t;. 
S.  II!.'),  the  same  court  reiterated  tlie  doc- 
trine that,  where  it  appears  that  there 
haH  been  a  complete  delivery  of  the  prop- 
erty in  accordance  with  the  terniH  of  Male, 
the  title  pawHCH,  althouuih  there  remains 
.something  to  be  done  in  order  to  ascer- 
taiii  the  total  value  of  the  i;o(jdH  at  the 
ratospecitied  in  the  contract.  To  the  same 
effect  are  the  New  York  cases  of  Crofoot  v. 
liennett,  2  N.  Y.  2.'>.S,  and  liurrows  v.Whit- 
aUer,  71  N.  Y.  I'D'.t.  But  takint?  the  rule 
with  4he  <iualilicationK  stated  in  New- 
mark  on  Sales,  we  lind  in  this  case  abun- 
dant evidence  to  show  that  it  was  the  in- 
tention of  the  parties  that  the  title  should 
pass  before  the  Kf'ods  had  been  weighed 
and  tested  in  ISaltimore.  The  buyers 
chartered  a  vessel  to  hrinj;  the  cargo  from 
South  Carolina  to  Baltimore,  insured  it 
for  their  own  benefit,  and  became  re- 
sponsible for  the  freight.  But,  what  is 
tnore  important,  and  more  significant,  as 
indicating  the  intention  of  the  vendor 
compan.v,  they  had  a  bill  of  lading  made 
out  l)y  the  master  as  soon  as  the  vessel 
was  loaded  at  Dale's  creek,  stating  on  its 
face  that  the  cargo  was  to  be  delivered 
to  the  vendees  or  to  their  assigns,  and 
procured  the  same  to  be  delivered  to  the 
Symingtons  within  a  week  from  its  date. 
.Now,  it  may  be  true  that  the  transmis- 
sion of  a  bill  of  lading  maj'  not  in  all  cases 
be  absolutely  conclusive  of  title  jis  be- 
tween vendor  and  vendee,  or  consignor 
and  consignee,  yet  the  implication  is  al- 
most irresistible  that  the  motive  of  tlic 
vendor,  when  the  bill  is  taken  in  tlie  name 
of  the  vendee,  is  to  vest  title  in  the  latter, 
free  from  all  conditions.  Key  v.  Cotes- 
worth,  7  Kxch.  ."ill.'),  and  note.  Ab  a  gen- 
eral rule  a  bill  of  ladingupcratesa  transfer 
LAW  SALPS — 20 


of  the  property  to  the  party  In  wliose 
favor  It  is  drawn,  and  to  whom  It  Is  de- 
livered. Citation  of  authority  on  this 
point  is  unnecessary.  It  the  vemlors  In 
this  case  had  wisheil  to  prevent  the  prop- 
erty from  passing,  and  to  retain  the  right 
to  deal  with  It  after  shipment  and  while 
in  transitu,  they  should  by  the  liill  of  lad- 
ing have  made  the  cargo  deliverable  to 
their  own  order,  and  have  forwarded  the 
same  to  an  agent  of  their  own.  with  di- 
rections to  retain  it  until  the  cargo  had 
l)een  finally  delivered,  weighed,  tested, 
and  paid  for  in  Baltimore.  Kx  parte 
Banner,  2  Ch.  Div.  2hh.  But  this  they  did 
not  do,  and  all  the  circumstances  of  the 
transaction  show  it  was  the  Intention  of 
both  parties  to  have  the  cargo  become 
the  property  and  be  at  the  risk  of  the 
vendees  from  the  moment  it  was  put  on 
board  the  carrying  vessel.  In  fact  it  was 
for  the  manifest  interest  of  the  vendors 
that  this  should  be  the  case,  for  If  the 
cargo  had  been  lost  by  shi|)wreck  of  the 
vessel  they  could  have  made  the  vendees 
responsible  therefor  In  an  action  for  goods 
bargained  and  sold, and  there  would  have 
been  no  insuperable  dilficulty  In  the  way 
of  their  recovery.  Upon  the  whole  case, 
therefore,  our  opinion  is  that  this  cargo 
became  the  property  of  the  Symingtons 
from  the  time  it  was  delivered  on  board 
their  vessel  at  Dale's  creek,  and  conse- 
quently iiassed  under  their  deed  of  assign- 
ment. The  case  is  unlike  that  of  a  sale 
"for  cash  on  deliverv,"  considered  in  Pow- 
ell V.  Bradlce,  '.)  Gill  &  .1.  220,  and  we  think 
it  is  also  distinguishable  in  material  facts 
and  circumstances  from  that  of  Whitney 
V.  Eaton,  I.")  (irny,  225,  so  much  relied  on 
by  counsel  for  the  appellant.  It  follows, 
therefore,  from  the  undisputed  facts  of  the 
case  that  this  action  cannot  be  main- 
tained, and  consequently  there  has  been 
no  ruling  prejudicial  totheappellant  made 
by  the  court  below  in  its  action  upon  the 
prayers.     .Judgment  afFirmed. 


FIELDER  V.  ST.VHKIX. 


807 


FIELDER  T.  STAUKIN. 

(1  n.  Bl.  17.) 

(Court  of  Common  Pleas,  Trinity  Term,  17S8.) 

This  WHS  an  aotion  on  the  warranty  of 
a  niare,  "  tliiit  mIir  wbh  huuhcJ,  guiet,  and 
free  from  vice  and  bleinisli." 

I'lea,  nDii-UKouuip^it,  on  wliicb  isHue 
wnH  joined. — 

TliecanHe  enme  on  to  be  tried  at  the 
last  asslzeH  at  Tlictford,  before  Mr.  Justiee 
.'\HhluirHr,  and  a  verdict  found  for  the  plain- 
tiff. It  appeared  on  the  tiial,  from  the 
learned  juil^e's  report,  that  the  plaintiff 
had  bouHfht  the  mare  in  qucHtion  of  the 
ilcfendant  at  Winnel  fair,  in  the  month  of 
.\Lircli,  17S7,  for  :io  f>uinoaN,  and  that  the 
defendant  warranted  her  sound,  and  free 
irom  vice  and  blen)i8h. —  Soon  after  the 
wale,  the  plnlntiff  discovered  that  she  waH 
unsound  and  vicious  (a),  but  i;ept  her 
three  months  alter  this  discovery,  duriii}; 
wliich  time  he  nave  her  physic  and  used 
other  means  to  cure  her.  At  the  end  of 
the  tliree  months  he  sold  her,  but  she  was 
soon  returned  to  him  as  unsound.  .Mter 
she  was  so  returned,  the  plaintiff  kept  her 
till  the  month  of  October  17n7,  and  tlien 
sent  her  back  to  thedefenilant  asunsound, 
wlio  refuseil  to  receive  lier.  On  her  way 
back  to  the  plaintiff's  stable,  the  mare 
died,  and  i,n  her  beinj;  opened,  it  was  the 
opinion  of  the  farriers  who  examined  her, 
that  she  had  l)een  unsound  a  full  twelve- 
month before  her  death.  It  also  appeared 
that  the  plaintiff  and  defendant  had  been 
often  in  company  to<;ether  durinK  the  in- 
terval between  the  month  of  March,  when 
the  mare  was  sold  to  the  plaintiff,  ami 
October,  when  he  sent  her  liack  to  the 
defendant;  but  it  did  not  appear  that  the 
plaintiff  had  ever  in  that  time  accjuainted 
the  defendant  with  the  circumstances  of 
her  bejnir  unsound.  The  jury  found  a  ver- 
dict for  the  plaintiff  with  30  guineas  duni- 
ages. 

.\dair,  Serjt.  shewed  cause.  Le  Blanc, 
Serjt.,  in  support  of  the  rule. 

Lord  LOUUIIBOIiOUOH— Where  there 
is  an  express  warranty,  the  warrantor  un- 
ilertakes  that  It  is  truc.-tt  the  tinieof  mak- 
ing it.  If  a  horse  which  is  warranted 
sound  at  the  time  of  sale,  be  proved  to 
have  been    at  that  time  unsound,  it  is  not 


necessary  that  he  should  lie  returned  to 
Hie  seller.  No  length  of  time  elapsed  after 
the  sale,  will  alter  the  natiin-  of  a  ron- 
tract  originally  false.  Neither  Is  notice 
nw-essary  to  be  given.  Though  the  not 
giving  notice  will  be  a  strorg  presump- 
tion against  the  buyer,  that  the  liorse  at 
the  time  of  the  sale  had  not  the  ficfect 
complained  of,  and  will  make  the  proof  on 
his  part  much  more  dlltlcult.  The  l)nr- 
galn  is  complete,  and  if  it  be  fraudulent 
on  the  part  of  the  seller,  he  will  l>e  liable 
to  the  buyer  ia  damages,  without  either  a 
return  or  notice.  If  on  account  of  a  horse 
warranted  sounil,  the  buyer  should  sell 
him  again  at  a  loss,  an  action  might  per- 
ha|)s  be  maintained  against  tlie  original 
seller,  to  recover  thedlfference  of  the  price. 
In  the  |)resent  case  it  afipears  from  the 
evidence  of  the  farriers  whr)  saw  the  more 
opened,  that  she  must  have  been  unsound 
at  the  time  of  the  sale  to  the  plaintiff. 

fiOI'LI),  J.— of  the  same  opinion,  re- 
membered many  cases  of  express  war- 
ranty, where  a  return  was  not  held  to  be 
necessary. 

HEATH,  .1.— If  this  bad  been  an  Bction 
for  money  had  and  received  to  the  plain- 
tiff's u.-ie.  an  Immediate  return  of  the  mare 
would  have  lieen  necessary;  but  as  it  is 
brought  on  the  express  warranty,  there 
was  no  necessity  for  a  return  to  make  the 
defendant  liable. 

WIL.so.X,  ,1. — of  the  same  opinion,  rec- 
ollected a  cause  tried  before  .Mr.  .lustlce 
liuller  at  nisi  prius.  where  the  defendant 
had  sold  the  plaintiff  a  pair  of  coach 
horses  and  warranted  them  to  be  six 
years  old.  which  were  In  reality  only  lour 
years  old.  It  was  cuntendeil  that  the 
plaintirr  ought  to  have  returned  the 
horses;  but  .\Ir.  J  ustice  I'.nller  held  that 
the  action  on  the  warranty  might  be  sup- 
|)orted  without  a  return.'  .As  to  part  of 
the  evideiice  being  contrary  to  the  verdict, 
the  jnr.v  have  a  right  to  use  their  discre- 
tion either  in  believing  or  disbelieving  any 
part  of  the  testimony  of  witnesses. 

Uule  discharged. 


'  See  Towers  v.  Barrett,  Term  Rep.  B.  R. 
vol.  i.  p.  i:{(>.  [and  Bucbanau  t.  I'ornsbaw, 
vol.  2,  p.  745.1 


i 


FIRST  XAT.  HANK  v.  CKOCKER. 


:m 


FIRST  NAT.  BANK  OF  CAIUO  v.  CROCKER 
et  al. 

(Ill  Mass.  1G3.) 

Supreme  Judicial  Court  of  Massachusetts.     Suf- 
folk.    Nov.  I«7:i. 

Tort   {iKiiiiiKt   ('r<)ci<L'r,   Smith  &  Co.  for 
the  convt'i'rtioii  of  100  harrolH   of   (lour.     It 
Jicpi''""'"!'    <'"    tlio   trial    tlint  .A y era  &  Co., 
i)f  Cairo,  llliiioiH,    had    dealt   with  defetid- 
aiit  coiiiiiiiriHicjii   iiiercliaiits    in   HoKtoD  for 
Home  .M'arn,  Hhipiiiiij;  tliciii    fl(/iir  on   coti- 
KiKiiment,  for  Halo  in    l'<jHtoii.  and    liavint; 
fitiopen  Kt'iii'ralconHijinincnt  a'count  with 
tht'iii.     Avers    iV:    Co.,    on    .VuKii-it  L':!,  !.S70,  1 
(•onsl>;n((l  to  them  Home  Hour,  and  drew  on  j 
tlieni  forinorethan  itH  value,  writing  them 
that    they  woulil    make  it  all  ritcht  in    the 
tie.xt   Hhipment.     The  defeTidantH  paid    the 
draft,  which  left    Ayers  \-    Co.  iiidelited  to 
defendants   for  about  f  l,.')ll().     On    August 
LM,  1S70,  AyerM&  Co.  shipped  the  100  barrels 
of  (lour  in  diKputc  to  Boston,  taking  a  hill 
of   lading   "consigned    to   Hhii)per'H   order 
liostou,    Mass.."  but   on   which  wuh  writ- i 
ten  "St.  Louis  Mills    and  Blackburn.     For! 
<  rocker,    .Smith     ifc     Co.,    Boston,    MaHs."j 
They  then  drew  on  defendants  with  bill  of  I 
lading  attaclied,  and  discounted  the  draft,  j 
which   defendants   refused    to  accept,  and  I 
it    was  returned    to   defendantH  with    thej 
bill   of   lading.     When   the  Hour  arrived  in  i 
Boston,   September    \2,    ISTO,    it  was    ac- 
companied liy  a  way  t)ill,  on  which,  under 
"Consignees,"     was     written      "(Jrocker, 
Smith  &  Co.,  Boston;"  and  tlie  Hour  was 
received   b.v    them    and   sold,  and    applied 
to  the  account  of  Ayers  &  Co.     Septeml)er 
14, 1S70,  Ayers  &  Co.  drew  a  draft  on  account 
of   tlie   100  barrels  of    Hour  on    (Joodwin, 
Locke  &  Co.  of  Boston,  in  favour  of  plain- 
tiffs, and  attached  to  it  the  lull  of   lading. 
Thedraft  was  accepted  an<l  paid  when  due. 
The  bill  of   lading  was  endorsed    iu  blank 
when  delivered    by  Ayers  •&  Co.,  lint  when 
forwarded  b.v  plaintiffs  the  words  "Deliver 
within-nanied    Hour  to  (Jood  win,  I..orke  & 
Company,  or   oi'der,"    were   written    over 
the  endorsement  of  Ayers  &  Co. 

.A.Churchill  &  J.E.Hudson,  for  plain- 
tiffs.    A.  A.  Ilanney,  for  defendantH. 

AMICS,  J,  It  is  manifest  that  the  flour 
was  not  i)laced  in  the  hands  of  these  de- 
fendants (or  the  purpose  of  securing  an 
existing  debt,  or  inilenmifying  them  for 
any  advances  that  they  had  made.  It 
was  not  consigned  to  them  in  order  that 
it  might  be  sold,  and  the  proteeds  curried 
to  the  credit  of  Ayers  &  Company  in  gen- 
eral a<'':ount  current.  It  is  true  that  the 
consignors  knew  that  they  had  over- 
ilrawn  their  accniinr,  and  that  tliey  had 
expressly  promJKed  to  "make  it  all  right" 
at  the  next  Hhijiment.  I'.ul  that  was  an 
executory  contract.  The  proposed  cor- 
rection stoi>d  wholl.v  in  agreement.  A 
general  promise  to  make  the  matter  right 
was  not  of  itself  sullicient  to  vest  in  tlie 
defendants  a  title  as  absolute  owners, 
even  of  the  goods  forwarded  at  the  next 
shipment,  unless  the  circumstances  in- 
dicated, or  at  least  wert>  consiscenf  with, 
Huch  an  intention  on  the  part  of  the  ship- 
pers. But  in  this  case,  tlie  consignment 
and    the   draft    constituted    one   transac- 


tion. The  bill  of  lading  and  the  draft 
came  together;  a]id  the  flefcndnntH  under- 
stood that  the  Hour  was  si-nt  tu  them, 
subject  to  a  claim  of  f.jOO  io  fa vor  uf  the 
holder  of  the  draft.  They  were  to  receive 
it  ui)on  the  trust  that  tliey  wore  to  pay 
that  amount  out  of  the  proi-eeds.  The 
meaning  of  the  transaction  on  the  part  of 
the  shippers  was  that  the  defendants 
were  to  receive  it  for  that  purpt.se  and 
upon  that  underHtanding  oidy.  It  was 
as  if  they  had  said,  " You  may  take  this 
flour  and  sell  it  on  our  account,  (irovliled 
you  will  accept  this  draft."  A  1)111  of  lad- 
ing indorsed  Is  only  prima  facie  evidence 
I  f  ownership,  and  is  open  to  explanation 
I'ratt  V.  Parkman,  iM  Pick.  4'.'.  This  hill 
of  lading  was  provisional,  and  was  not 
Intended  to  vest  the  property  in  the  de- 
fendants, or  to  authorize  their  takini; 
possession  of  it,  except  upon  the  condi- 
tion of  their  acceptani-e  of  thedraft.  Al- 
ItTi  v.  Williams,  li*  I'ick.  -".I7. 

The  act   of  the   defendants,  therefore.  In 
taking  |)OsseHHion  of  the  Hour  was  whtdly 
unauthorized,    and     gave     them     neither 
valid  title  nor  la wful  possession.     .Mien  v. 
Williams,  ubi   supra.     In    proceeding   aft- 
erwards tc  sell  it  as  if   it  were  their  own. 
and    appropriating     the    proceeds,    they 
were  guilty  of  a  wrongfid  ((inversion.     .\ 
carrier   may    be   a  mere  bailee  for  the  con- 
signor; anil  where  by  the  terms  of  the  hill 
of   lading  the  goods  are  to  ho  delivered  to 
the  consignor's    order,  the    carrier   is   his 
agi'iit,  and    not    the  consignee's.     Moakes 
V.  .Nicolson,  l'.»  C.  B.  (N.  S.|  IttO.     Baker   v. 
Fuller,  i;l  Pick.  ;!1S.     Merchants'    .National 
Bank   v.  Bangs,  lOl!  Mass.  'JOl.     On  the  re- 
fusal of  the  consignee  to  receive  the  goods 
upon    the  terms  ami    for  the  purposes   for 
which    they    were  sent,    he    cantiot    take 
them  for  anv  other  purpose.     Shepherd  v. 
Harrison,  L.  K.  .1  II.    L.    IIG.     De    Wolf   v. 
(iardner,  ]2    Cash.    I'.l.    2:t.     Allen    v.    Wil 
linms,  12  Pick.  207.     The   title   to  the  Hour 
therefore  remained  in  the  shiiiper,  whidly 
I  unaffected    by    the  consignment.     Kven  In 
I  the  case  of  a  contract  of  sale,  the  fact   of 
;  making   the   bill   of  biding  <lcliverable   to 
i  the  order   of   the  vendor,  when  not  rebnt- 
I  ted  by  evidence  to  the  contrary  is  decisive 
,  to  show  his  intention  to  preserve  the  jus- 
(lisponenili,  and    to   prevent   tlie  property 
from    passing    to    the    vendee.       Wait    v. 
Baker,  2  Kxch.  1.     \>\n    Casteel  v.  Booker, 
Ih.CpOl.    The  case  of  a  mereconsignment  to 
an  agent  would  he  of  course  still  stronger. 
1      I'pon  the   refusal   of    the   defendants   to 
ac<ept    the  C4iiisignmcni    upon    the  terms 
prop>ised,  wliicli    refusal    was    suHlclenlly 
mnnifesteil  by  the  protest  of  the  drafi  and 
j  the  return  of  the  bill  of  lading,  the  owners 
I  of  the  Hour,  .\yers  \  Company,  had  a  riglit 
i  to   seek    a    ni'W    consignee,  and    to    make 
I  another   attempt    to   obtain    an    advance 
'  by  n  draft  t<i  be  chargeil  against  theprop- 
erty.     .\u    arrangement    was   accordingly 
made  with  thi-  plaintiffs,  who   discounted 
tlieirdiiift    of   ?lail   u|iou    the   security    of 
the  same  bill  of  hiding   that  had  been  sent 
to   the   deleiulanis  and  returneil  liy  them. 
If  this  bill  of   lading    was  delivered  to  the 
I  pl'iintiffs.  indorsed    in  Idank     by   Ayers   & 
[Company,  (and  there  Is  testimony  to  that 
I  effect,)  tiie  transactiiin    wouhl   operate  as 
i  u   transfer  of  their  title   in  the  flour  to  the 


310 


FIRST  NAT.  BANK  v.  CROCKER. 


plaintiffs,  if  suoh  were  the  intention  of  the 
parties.  Ah  the  property  was  at  that  time 
in  Boston,  it  was  of  course  incapable  of 
aetiial  ilclivery  at  (.'airo,  and  tlie  delivery 
of  tlie  evidence  of  title,  with  the  Indorse- 
ment upon  tlie  hill  of  lading,  was  all  that 
could  be  done  for  the  transfer  of  the  prop- 
erty from  tlie  general  owner  to  the  new 
purchaser;  but  it  would  be  effectual  for 
that  purpose.  Conard  v.  Atlantic  Ins. 
Co.,  1  Pet.  :W(i,  44.').  Gibson  v.  .Steven.«,  8 
How.  :1S4.  Brvans  v.  Nix.  4  M.  &  W.  775, 
791.  Low  V.  i)e  Wolf,  S  Pick.  101.  (Jord- 
ner  V.  Howland,  2  Pick.  .')!)!).  Stanton  v. 
.Small,  ;>  Sandf.  2.30.  Pratt  v.  Parkman, 
24  I'ick.  42.  In  Gibson  v.  Stevens,  the 
court  say,  per  Taney,  C.  .!.:  "This  rule 
applies  to  every  case  where  the  thing  sold 
is,  froni  its  character  or  situation  at 
the  time,  ;n(!apal)le  of  actual  delivery." 
To  the  extent  of  their  advance  of  money 
upon  the  draft,  therefore,  the  fjlaintiffs 
would  be  ciwisidered  as  purchasers,  and 
they  would  acquire  a  special  jiroperty  in 
the  flour  for  tlie  purpose  of  pr(jtecting  the 
draft.  At  the  time  of  this  transaction, 
the  flour  remained  in  the  possession  of  the 
(lefen<lants,  and,  with  the  exception  of 
taking  pi^ssession,  nothing  had  been  done 
on  thi'ir  part  amounting  to  a  wrongful 
conversion  of  it  to  their  own  use.  They 
had  not  [uit  it  out  of  their  power  to  re- 
place the  shippers  in  the  enjoyment  of 
their  rights. 

It  ai)pears  from  the  report,  that,  when 
the  bill  of  lading  was  forwarded  the  sec- 
ond time,  the  name  of  the  firm  of  Good- 
win, Locke  &  Company  was  written  over 
the  indorsement  of  Ayers  &  Company. 
l?ut  we  do  not  tliink  that  this  fact, 
whether  the  blank  indorsement  were  tilled 
up  after  or  before  the  discount  of  the 
draft,  would  materially  affect  the  plain- 
tiffs' rights.  The  bill  of  lading  was  at- 
tached to  the  draft,  and  the  substance  of 
the  transaction  was  that  thedi'aftwas 
discounted  upon  the  security  of  the  mer- 
chandise itself.  It  purports  to  he  on  ac- 
count of  the  liarrels  of  Hour  described  in 
the  bill  of  lading.  The  tlour,  alihough  in- 
trusted to  Goodwin,  Locke  i.^  Company  to 
sell,  was  appropriated  to  the  specific  pur 
pose  of  the  payment  of  this  draft.  The 
bill  of  lading  was  put  in  the  plaintiffs' 
hands  to  enable  them  to  hidd  the  mer- 
chandise as  their  security,  and  the  dis- 
counting of  the  draft  was  the  co7isidera- 
tion  for  the  transfer  of  the  property  to 
them.  It  was  convenient  so  to  indorse 
the  bill  of  failing,  as  to  make  it  manifest 
that  Goodwin,  Locke  &  Companj'  were  tc» 
receive  and  dispose  of  thegoods;  but  they 
were  to  do  so  as  trustees  and  agents  of 
tlie  plaintiffs,  and  not  as  proprietors  in 
their  own  right.  Tliey  certainly  acijuired 
no  title  in  the  property  until  they  had 
accepted  the  draft,  and  when  that  event 
hap))ened  the  goods  had  been  disposed  of 
by  the  defendants,  and  had  gone  into  the 
hands  of  bona  fide  holders  without  notice, 
so  as  to  be  be.vond  recall.  The  effect  of 
this  transaction  bcttveen  the  plaintiffs 
and  Ayers  &  Company  was  that  the  Hour 
was  designated  to  st;ind  as  collateral  se- 
curity for  the  draft.  If  the  draft  had  not 
been  accepted,  the  plaintiffs  clearly  would 
not   have   lost   their  title  to  the  flour.     It 


is  not  necessary  to  hold  that  the  plain- 
tiffs became  absolute  owners  of  the  prop- 
erty ;  it  is  enough  that  they  had  a  riglitof 
property  and  possession  to  secure  the 
payment  of  the  draft,  and  the  right  of 
Ayers  &  Company  as  former  owners  of  the 
specific  property  had  become  divested, 
leaving  them  only  a  right  in  the  surplus 
money  which  might  remain  after  a  sjile 
of  the  flour  and  a  payment  of  the  draft 
from  the  proceeds.  lie  Wolf  v.  Gardner, 
12Cush.  1!).  has  in  many  respects  a  close 
analogy  with  this  case.  'J'here  the  gen- 
eral owner  of  the  flour  was  the  plaintiff, 
and  the  defendant  was  a  party  claiming 
under  the  new  consignee,  and  the  court 
held  that  the  plaintiff  had  parted  with  the 
right  of  property,  and  could  not  maintain 
his  action.  In  Bank  of  Rochester  v. 
Jones,  4  Coinst.  407,  as  in  the  case  at  bar, 
the  plaintiffs  had  di.'-counted  a  draft 
drawn  by  the  owner  of  a  quantity  of  flour 
upon  the  defendant,  who,  as  in  the  case 
at  liar,  refused  to  accept  the  draft,  and 
claimed  to  hold  the  flour  and  sold  it  for 
the  payment  of  a  balance  <lue  from  the 
drawer.  Instead  of  a  bill  of  lading,  there 
had  been  a  carrier's  receipt,  which  the 
drawer  delivered,  unindorsed,  to  the 
plaintiff  bank.  The  agreement  was  that 
the  bank  should  hold  the  flour  as  security 
that  the  diaft  should  be  accepted,  but 
with  ijower  to  sell  it  if  the  draft  should 
not  be  accejited.  The  court  of  appeals 
held  that  the  defendant  could  not  acquire 
any  propert.v  in  the  flour,  except  by  per- 
formance of  the  condition  imposed,  name- 
ly, the  acceptance  of  the  draft;  that  the 
transaction  between  the  consignor  and 
the  plaintiff  bank  gave  to  the  latter  a  gen- 
eral or  special  property  in  the  Hour;  that 
the  transaction  constituted  a  sale  to  the 
bank  in  trust  for  the  fulfillment  of  the 
agreement;  that  the  carrier's  receipt, 
though  not  indorsed,  was  sufficient  evi- 
dence of  the  plaintiff's  right  of  possession; 
and  that  the  statute  of  frauds  was  not 
applicable,  as  the  deliver.v  of  the  receipt, 
in  consideration  of  the  discount  of  the 
draft,  was  surticient  to  transfer  the  title. 
In  legal  effect,  and  for  the  purpose  of  ex- 
plaining what  is  to  be  done  with  the 
merchandise,  there  can  he  no  substantial 
difference  between  a  bill  of  lading  and  a 
cari-ier's  receipt. 

We  have  then  in  this  case  an  intent  of 
the  general  owners  of  the  flour  to  make 
use  of  it  as  a  securit.v  for  an  advance  of 
money  from  the  plaintiffs;  a  delivery  of 
the  bill  of  lading  in  pursuance  of  that  in- 
tent; and  a  valuable  and  executed  con- 
sideration in  the  discounting  of  the  draft. 
The  fact  that  the  goods  were  in  the  cus- 
tody of  the  defendants  would  not  prevent 
this  arrangement  from  having  the  effect 
to  transfer  the  title  of  Ayers  &  Company 
to  ilie  plaintiffs.  Whipple  v.  Tha.ver,  16 
Pick.  25.  McKee  v.  Judd,  2  Kern.  622. 
Whether  it  should  be  regarded  as  a  sale, 
a  pledge  or  a  mortgage,  there  was  a  suffi- 
cient (lelivery  to  give  to  the  plaintiffs  a 
special  property,  which  they  could  enforce 
1..V  suit  against  any  wrongdoer.  They 
had  a  i-ight  to  transfer  the  property,  sub- 
ject to  the  same  trusts  upon  which  they 
held  it  themselves,  to  their  eorrespond- 
eut  or  agent  in  Boston,  and   it   may    well 


FIRST  NAT.  BANK  v.  CROCKER. 


311 


tip  tlint,  if  the  drnft  liiiil  been  uccented  by 
Goodwin,  l^ocke  <fe  roinpnny  liefore  the 
flour  hml  been  Hold  iiiid  placeil  out  of  their 
reach,  tliei'  would  luive  been  the  proper 
parties  to  have  brou^lit  tlilH  netloii.  Hut 
the  transfer  to  them  (or  that  reason 
wholly  failed  to  take  effect,  and  tliey  ac- 
(]uire(l  no  title  t<i  the  (lour  K|)ecHieally  If 
they  had  nccciiled  the  draft  before  the 
flour  had  been  sold  to  a  boim  firU;  pur- 
chaser, the  case  would  have  been  almost 
exactly  like  Allen  v.  Williams,  above  cited. 
That  was  a  case  in  which  the  conHiy;nce  of 
merchandise  refused  to  accept  the  dralt 
which  accompanied  the  bill  of  ladiii)^,  and 
took  possession  of  the  merchandise, claim- 
in(r  as  in  this  case  the  riKlit  to  do  so  in 
order  to  secure  a  balance  due  to  l.im  from 
the  consignor.      The    court  hold   that    a 


new    consignee     could     mnintain    trover 

a;;ainNt  him. 

Our  conclusion  then  Is.  that  at  the 
time  of  (he  sale  of  the  flour  by  the  defend- 
ants, the  plalntiffH  hail  a  ri);lit  and  prop- 
erty in  it,  which,  whether  Rcneral  or  Hpe- 
cial.  and  whethi-r  as  purchasers,  truHtees. 
pled^eeH  or  mortKaKees.  i;ave  theiu  u 
right  of  possession  as  against  all  wrong- 
doers; and  that  the  defendants  had  no 
title  whatever  and  w  ere  mere  wninnflocrH. 
The  fa(!t  that  the  draft  has  been  |iaid  by 
the  new  consicnees  does  not  (irevent  the 
plaintiffs  from  niaintninlUK  the  action  fur 
the  beni'lit  and  (jrotection  of  the  a<-cept- 
ors  of  the  draft,  who  without  fault  o( 
their  own  have  been  de()rived  of  the  Hecur- 
ity  upon  whi(di  it  was  discounted. 

Judgment  for  the  plaintiffu. 


FIRST  NAT.  BANK  v.  DEARBOKN. 


313 


FIRST   NAT.   B.\NK   OF   GRKEN   BAY   v. 
DEARBORN. 

(11.5  Mass.  219.) 

Supreme  Judicial  Court  of  Massachusetts.   Suf- 
folk.   June  18,  1874. 

Ufplcvin  of  100  liarrcU  of  flour.  CoKe 
witliilruwii  from  tliL'  jury,  nnd  I'eporti'd  i 
to  the  Kii|)r('ine  court.  The  followliif^  i« 
the  siil>htiince  of  the  report : 

!{.().  I'orks.of  (ireen  May, Wis.,  was  innn- 
i)f!icturiiit>  Hour  at  Necnali,  Wis.,  at  wliicli 
place  the  plaintiff  hank  wa.s  established. 
I'nrkf  had  Hliipped  Hour  to  Harvey,  .Scud- 
der  i!ic  ("o  ,  of  lioston.  His  drafts  on  them 
had  beoii  accepted,  and  paid  in  part.  The 
hank  adv.inced  to  I'arks  :5400  on  the  Hour 
in  controversy.  I'arks  left  with  it  the  fol- 
lowiuK  ilraft  "on  Harvej  ,  Scudder  &Co.: 
••$400.  Ollice  of  R.  t;.  Parks  &  Co.,  (ireen 
l!ay,  Wisconsin.  October  17,  1^70,  At  si^ht. 
pay  to  the  order  of  .M.  I).  Teak,  cash,  four 
hundred  dollars,  value  received,  and 
charire  the  same  to  the  account  of  R.  (i. 
Parks  &  Co.  "  .\cross  the  face  of  the  draft 
was  written  in  pencil,  ■■  Hold  this  till  to- 
morrow, vvheri  I  will  jiivc  you  U.  L.  "  The 
next  day  Parks  uave  the  bank  the  follow- 
inj;  writing:  "Chicago  &  Northwestern 
Hallway  Company,  Neenah,  October  17, 
1S70.  Received  from  R.  G.  Parks  and  Co.  t 
100  barrels  of  Hour  braniled  W.-ftec.  in 
train,  consigncil  to  Harvey.  Scudder  & 
Co.,  Boston,  .Mass.,  via  (ireen  Bay.  To 
be  forwarded  to  the  Ft.  Howard  Station 
upon  the  ferms  ami  conditions  of  the  pub- 
lished tariff  of  this  company.  A.  H. 
Boardmari.  .\Keiit.  "  The  bank  then  i)laced 
f  1,400  to  the  credit  of  Parks.  The  defend- 
ant admitted  that  the  draft  and  receipt 
were  delivered  by  Parks  to  the  b.nnk  to  se- 
cure the§i400advanccd,  and  that  it  was  the 
intention  to  transfer  the  flourfor  the  same 
purpose.  The  fl(jur  was  in  Parks'  mill  at 
Neenah  until  its  delivery  to  the  railway 
company, by  Parks'  agent,  befori'the  sign- 
ing of  the  receipt,  but  had  not  been  seen 
by  Parks  or  the  bank.  The  receipt  nnd 
draft  were  forwarded  to  Boston  by  the 
bjink.  Harvey,  Scudder  &  Co.  refused  to 
accept  the  ilraft  because  no  bill  of  lading 
accompanied  it,  and  they  never  made  any 
advance  on  the  Hour  or  received  it.  f)ne 
of  the  lirm  of  Harvey,  Scudder  *c  Co.  in  ■ 
formed  a  creditor  of  Paiks  &  Co..  in  Bos- 
ton, that  the  Hour  was  likely  to  arrive, 
and  that  bis  lirm  had  no  claim  on  it;  and 
defendant,  a  deputy  sheriff,  levied  an  at- 
tachment -in  it  on  its  arrival  as  the  i)rop- 
erty  of  I'arks  &  Co. 

R.  .\I.  Morse.  Jr.,  and  R.  Stone,  .Ir.,  for 
plaintiff.     J.  W.  Hubbard,   for  defendant. 

.\M1CS,  J.  It  appears  that  when  the 
draft  was  discounted  and  the  receipt  de- 
livereil  to  the  i)laintiff,  l)oth  parties  under- 
stood thai  it  was  an  advance  by  the 
bank,  "on  the  Hour."  I'.oth  partfes  in- 
tended that  the  property  should  be.  and 
un<lerstooil  that  it  was,  by  that  transac- 
tion, transferred  to  the  bank,  as  security 
for  that  advance.  The  discouniing  of  the 
draft  was  a  sutticient  consideration  for 
such  a  conveyance.  If  there  was  a  sulli- 
cient  delivery  of  the  properly  to  the  plain- 
tiff, there  was  nothing  to  hinder  the  inten- 


I  tion  of  the  parties  from  gidng  into  full 
effect. 

The  charncterand  situation  of  the  prop- 
erty at  the  time  of  this  trnnsuctlon  were 
such  that  an  actual  delivery  was  Impos- 
sible. .\  constructive  or  symbidical  deliv- 
ery was  all  that  the  circumstances  al- 
lowed, but    a    ileliverj-   of    that   nature,  if 

I  properly  made,  woidd  have  been  sulHcieiit 
to  give  to  the  plaintiff  cor|)oralion  the 
title  to  the  properly,  and  an  immeillate 
right  of  possession,  which  It  could  mnln- 
taiu,  nut  only  against  I'arks  himself,  but 
also  against  Ills  creditors.  Tuxworth  v. 
Moore.  !)  Pick.  .■J47.  Fettvplacc  v.  Dutch, 
I'J  Pick.  3SS.  Whipple  V.  Ihavcr,  10  Pick. 
■27,.  Carter  v.  Willard,  Ifl  Pick.  1.  The 
delivery  of  the  evidences  of  title,  with  or- 
ilers  upon  them,  would  be  eipiivalent  to 
the  delivery  of  tlie  property  itself.  (JibHon 
V.  Stevens.  S  How.  3^4.  Nathan  v.  (iiles, 
.">  Taunt.  .').">s.  .National  Bank  r)f  Cairo  v. 
Crocki.r.  HI  Ma.-fs.  lt>:!.  and  cases  there 
citeil.  .Ml  that  would  be  necessary  in  such 
a  case  woulil  be  that  the  thing  actually 
delivered  should  have  been  intended  as  a 
symbol  of  the  property  solJ. 

In  this  case,  the  only  thing  which  was 
delivered  to  the  plaintiff,  as  the  represent- 
ative or  symbol  of   the  property  intended 

I  to  be  transferred    to  the  plaintiff,  was  the 

'written  ncknow  ledgment  of  the  railroad 
corporation  that  thoy  liad  received  the 
merchandise  for  transport  a  tion,  consigned 
to  Harvey.  Scudder  &  Co..  of  Boston.  No 
order  of  any  kind  was  Indorsed  upon  this 
receipt,  anil  no  attempt  was  made  to 
transfer  it  to  the  plaintiff  in  any  mode, 
other  than  by  mere  manual  <lelivery.  Rut 
the  receipt  was  evidence  of  ownership  in 
Parks,  and  the  only  voucher  which  he 
had  in  or<ler  to  show  his  right  to  the 
goods  after  parting  with  their  actual  pos- 
session. It  "  as  the  meaiis  which  he  had 
of  calling  the  carrier  to  account  If  the 
goods  shouhl  be  lost  or  injured,  a-id  It 
miuht  well  be  supposed  that  the  carrier 
would  not  ordinarily  give  up  the  goods 
except  upon  the  production  ami  surrender 
of  that  receipt.  Whatever  right  Scudder 
&  Co.  might  have  had  to  take  the  Hour 
into  their  own  hands,  if  they  had  accept- 
ed the  dr.'ift.  it  is  certain  that  on  their  re- 
fusal to  receive  the  consignment,  the  prop- 
ertv  remained  in  the  hands  of  the  carrier, 
as  the  property  of  the  consignor,  <ir  any 
I)ersi'n  deriving  title  trom  the  consignor; 
the  ctirrier  would  not  be  wholly  relieved 
of  responsibility  by  the  refusal  of  Scudder 
&  Co.  to  receive  the  property,  but  would 
continue  to  be  liable,  at  least  for  reason- 
able care  in  its  custody,  to  the  trueowner. 
It  is  true  that  a  receipt  of  this  kind  does 
not  purport  on  Its  face  to  have  the  <iuasl 
nogotijible  character  which  Is  sometimes 
said  to  belong  to  bills  of  lading  in  the  or- 
dinary form:  neither  does  it  purport  In 
terms  to  be  good  to  the  bearer.  But  In- 
dependent! v  of  any  indorsement,  or  formal 
transfer  In"  writing,  the  po.ssesslon  ami 
production  of  it  would  be  evidence  Indi- 
cating to  thecarrier  that  the  bank  was 
entitled  to  dem.ind  the  property,  and 
that  be  would  bejustilied  in  deliverinK  It 
to  them.  There  are  cases  In  which  the  de- 
livery of  a  receipt  of  this  nature,  though 
not  indorsed    or  formally  transferred,  yet 


314 


FIRST  NAT.  BANK  v.  DEARBORN. 


intendefl  as  a  transfer,  has  been  lieltl  to 
be  a  sood  K.vinbolical  delivery  of  the  |)ro|)- 
erty  described  in  it.  In  llaille  v.  Smith,  1 
B.  &  F.  .")(;:!,  Eyre,  C.  J.,  uses  tliis  lanjiuuse: 
"I  see  no  reason  wli.v  we  shouUl  not  ex- 
pound thedoctrineof  transterver.vlarjjely, 
upon  the  ajireeineiit  of  tlie  parties,  and 
upon  tiieir  intent,  to  carry  tlie  substance 
of  that  asreeinent  into  e.xecution."  In 
Allen  V  Williams,  12  Pick.  207.  :)(J1,  Shaw, 
C  .1.,  in  (leliverinK  the  judgment  of  the 
conrt.says:  "Even  a  sale  or  pledge  of  the 
property  without  a  formal  bill  of  ladinjj, 
by  the  shipper,  would  operate  as  a  n'ood 
assignment  of  the  projierty  ;  and  the  de- 
livery of  an  informal  or  unindorsed  bill  of 
ladinj;.  or  other  docunientar.y  evidence  of 
the  slii|)i)er's  property,  would  be  a  s"'Jd 
symbolical  delivery,  so  as  to  ve.st  the 
property  in  the  plaintiffs."  It  is  true  that 
he  adds  that  it  was  not  necessary  to  place 
the  case  upon  that  grttund.  But  this 
dictum  was  cited  withentire  a|)probntion, 
in  a  case  raising  that  exact  point,  in  the 
court  of  appeals  of  the  state  of  New  York. 
Bank  of  Rochester  v.  Jones,  4  Conist.  41)7. 
In  that  case,  as  in  this,  the  plaintiff  had 
discounted  a  draft  drawn  against  a  ([uan- 
tity  of  Hour,  and  its  title,  as  in  this  case, 
depended  upon  a  carrier's  receipt,  deliv- 
ered to  it  without  any  wi'itten  imlorse- 
ment.  The  court  held  that  the  plaintiff 
thereby  ac()uired  a  sufficient  title  to  the 
property,  and  could  call  the  consignee  to 
account  for  it,  he  having  converted  the 
property  to  his  own  use,  without  accejtt- 
ing  the  draft.     It  is  not  necessary  to   hold 


that  the  plaintiff  was  absolute  owner  of 
the  ])roperty  ;  it  is  enough  that  it  had  a 
right  of  proi)erty  and  of  possession  to  se- 
cure the  payment  of  the  particular  rlraft; 
and  the  right  of  the  former  owner,  I'arks, 
in  the  specific  property,  had  become  di- 
vested, leaving  him  onl.v  a  right  in  the 
surplus  n)onoy  which  might  remain  after 
a  sale  of  the  Hour,  and  a  payment  {)f  the 
draft  from  the  proceeds.  I)e  Wolf  v.  Gard- 
ner, 12Cush.  10,  24. 

Some  reliance  was  placed  by  the  defend- 
ant's counsel  upon  certain  local  statutes 
and  judicial  derisions  of  the  state  of  Wis- 
consin. But,  if  applicable  at  all,  they  do 
not  in  our  judgment  affect  the  decision  of 
the  case.  If  we  are  right  in  holding  tliat 
there  was  a  sufficient  delivery  to  pass  the 
proi)erty  to  tlie  i)laintiff  corporation,  the 
carrier  must  beconsidered,  after  that  time, 
as  its  bailee,  and  as  holding  the  property 
for  it,  and  not  in  any  adverse  relatit)n. 
Mis  possession  would  be  the  |)08session  of 
the  plaintiff. 

Our  conclusion  thereforeis  that  theclear 
intent  of  the  parties,  that  the  property 
should  stand  as  security  to  the  plaintiff  in 
discounting  the  draft,  was  carried  into 
effect  in  a  mannersanctioned  by  sound  au- 
thorities, and  that  there  are  no  special 
equities  in  favor  of  an  attaching  creditor 
that  make  it  desirable  to  defeat  that  in- 
tent. 

Judgment  for  the  plaintiff. 


COLT, 
absent. 


ENDICOTT,  and   DEVENS,  J.I. 


FIRST  XAT.  BANK  v.  SHAW. 


317 


FlUST  NAT.  BANK  OF  TOLHDU   y. 
SHAW. 

(61  N.  Y.  283.) 

Commission   of   Appeals   of   New    Yorlj.    Seiit. 
Term,  1874. 

Eilnard  Bissoll,  for  appellant.  Getiri;e 
W.  Parsons,  for  respondents. 

DWIGHT,  C.  The  plaintiff  in  this  ease, 
iimler  the  bill  of  lailinsie-M'cuti'd  at  Toledo, 
had  the  lenal  title  to  the  property.  True, 
it  held  this  not  as  almolute  owner,  liut  to 
secure  its  advances,  the  ultimate  interest 
appertnininK  to  Grillin&Co.,  still  the  ti- 
tle was  ill  the  plaintiff.  8o  lontr  as  the 
advances  were  not  paid  there  was  im  the- 
ory whereby  Grilhn  &  Co.  could  claim  title. 
It  had  never  been  in  them.  At  the  mo- 
ment their  interest,  whatever  it  was,  ac- 
crued t(»  them,  it  came  to  them  burdened 
with  the  formal  ownership  of  the  plaintiff. 
The  bank  held  the  title  in  trust  for  (irilHn 
&  Co.,  after  its  own  claim  was  satisfied. 

This  would  be  the  result  of  the  transac- 
tion as  between  the  parties,  even  thout;h 
no  hill  of  ladinRhad  been  executed.  Bank 
of  Hochester  v.  Jones,  4  X.  Y.  4!)7;  o.">  Am. 
Dec.  2'JO.  The  bill  of  indinK  was  merely 
an  instrument  to  carry  out  the  trueintent 
of  the  transaction,  as  evinced  by  their 
dealing's. 

Before  entering  in  detail  into  the  ques- 
tion of  the  |ilaintiff's  title,  it  is  important 
to  notice  whether  the  bill  of  ladin;::  was 
drawn  in  such  a  way  as  to  accomplish  the 
parties'  intent,  or  whether  it  was  in  any 
proper  sense  of  the  terra  anibiuiious.  In- 
struments of  this  kind  are  familiar  to  the 
le^al  profession,  and  the  construction  of 
some  of  the  danses  in  the  one  under  con- 
sideration lias  tieen  settled  ever  since  the 
case  of  Dows  v.  Perrin,  K!  N.  Y.  ."!-.").  In 
that  case  there  were  bills  of  ladinji  of  ct)rn 
liy  t  wo  caual-boats.  to  the  care  of  Dows 
&  Carey,  for  account  of  one  Mack.  The 
court  said  that  this  lannunse  vested  the 
title  in  Mack.  The  regular  method  of  set- 
ting forth  his  title,  as  the  consignee  or 
party  entitled  to  control  the  goods  on 
their  arrival,  would  have  been  for  the 
owner  who  shipped  it  to  have  indorsed 
the  bill,  making  the  com  deliveralile  to 
him  or  his  order.  This  however  was  done 
in  substance  by  stating  upon  the  face  of 
the  paper  that  the  shiiimeiit  was  made 
on  his  account.  When  the  document  thus 
prepared  was  delivered  to  .Mack,  it  pur- 
ported to  tie  a  transfer  from  Niles&  Wheel- 
er (the  consignors)  to  liini  of  the  corn, 
and  to  lie  a  contract  on  the  part  of  the 
proprietors  of  the  transportalinii  line  to 
cany  it  to  New  York.  an<l  deliver  it  there 
to  Dows  &  Carey,  according  to  his  direc- 
tions, for  the  price  of  freight  tr.entioned  in 
it.  I'age  :!:;!l.  Dows  V.  CJreene,  'Jt  .\.  Y. 
(his,  (i40,  reiterates  tirs  ruling  under  an  in- 
strument having  sulistantially  the  same 
teruis  as  were  employed  in  the  case  at  bur. 
The  effect  of  these  words  showing  that  the 
title  was  in  the  hank,  and  that  Kidd, 
Pierce  &  Co.,  and  A.  I-.  Grillin  it  Co.,  were 
its  .agents,  was  not  cliangeil  liy  the  fact 
that  there  wereadditional  words,  "  B'k  a/c 


to  T.  W.  (Jrillln  &  Co."  There  Ir  nothlni; 
in  those  words  on  their  face  to  show  that 
the  title  w  as  in  Gridi'i  &  Co.  Ah  far  ait 
they  can  be  interpreted  by  a  mere  perusal 
of  them.andconsldering  t lieabbrevialions 
to  mean  "liank  account, "  they  reter  to 
some  relation  between  the  bank  and  Grif- 
fin it  Co.,Hncl  not  to  anydealings  lietwe<-n 
the  owners  of  the  grain  and  the  bank. 
Kvidence  however  was  given  to  e.TplaIn 
the  romniercial  meaning  at  'I'oledo,  Ohio, 
of  the  words,  the  result  of  which  was  that 
they  wei-e  a  mere  notation  to  show  that 
the  bank  held  title  to  secure  the  payment 
of  a  debt  due  from  Gritfin  &  Co.  It  was 
objected  liy  the  defendants  that  this  evi- 
dence was  not  legitimate,  on  the  ground 
that  this  was  not  an  Ohio  but  rather  a 
New  YorUcontract.  The  advanccof  mon- 
ey was  made  in  Ohio,  the  transfer  of  the 
grain  took  place  there,  ami  the  bank,  as 
between  itself  and  the  persons  with  whom 
it  dealt,  Carrington  &  Casey,  were  entitled 
to  repayment  there.  The  drafts  onlirillin 
&  Co.,  and  the  bills  of  lailing,  were  merely 
a  mode  of  re-imburseinent.  The  contract 
Is,  in  substance,  an  (Jliio  contract.  Story 
Confl.  Laws,  §  L's".  It  is  there  laid  down 
that  when  advances  are  made  in  such  a 
case,  the  undertaking  is  to  replace  the 
money  at  the  same  place  at  which  the  ad- 
vances are  made,  even  tlxiugh  the  mode 
of  re-imburseinent  lie  by  drafts  on  n  for- 
eign eonntrv.  Lannssee  v.  Barker,  .'I 
AVheat.  Kll.  iVi;  (iriint  v.  Healey,  I!  .Sunin. 
5u'.i,  Boyle  v.  Zacharie.  (i  Pet.  r.:!."..  tu:\.  i\U. 
In  the  more  general  case,  wlierea  contract 
is  made  in  one  country  and  to  be  per- 
f<iriiie(l  in  another,  it  is  not  always  easy 
to  determine,  according  to  the  authori. 
ties,  whether  the  interpretation  of  words 
is  to  be  governed  by  the  la  w  of  the  place 
where  the  contract  is  made,  or  l>y  that 
where  it  is  to  be  performed.  The  general 
principle  is,  that  the  law  of  the  place 
where  the  contract  is  made  Is  to  govern, 
unless  it  is  positively  to  lie  performed 
elsewhere.  The  l.'ict  that  acts  are  to  be 
ilone  abroad  umler  a  contract  does  not 
necessarily  mnke  it  a  contract  to  be  per- 
formed there,  in  a  legal  sense.  Thus  it  has 
been  said  that  !i  policy  of  insurance  ex- 
ecuted in  Knglaii'l  on  a  French  ship  for  a 
French  owner,  on  a  voyage  from  one 
French  port  to  another,  is  to  be  Interpret- 
ed as  an  Ivnglish  contract.  Don  v.  Liup- 
inann,  .'.Cl.it  F  1,  li).  The  true  Inquiry 
is.  what  was  the  Intent  of  the  parties.  It 
would  seem  that  in  a  case  like  the  present, 
where  the  contract  was  made  in  Ohio,  tiy 
Toledo  parties,  the  money  beingadvanced 
there  and  the  security  there,  that  they 
had  in  view,  in  employing  words,  their 
own  usages,  even  though  the  goods  were 
to  lie  sent  to  an.itlier  state,  and  nltimate- 
Iv  sold  there  if  the  advances  were  not  re- 
I'.aid.  The  result  is,  that  the  bill  of  laillng 
executed  at  Toledo  was  Intended  to  vest 
the  title  in  the  grain  in  the  plaintiff ;  that 
A.  L.  tJrillin  it  Co.  were  its  agents  to  for- 
ward the  cargo  to  New  York:  that  Kidd 
it  Pierce  were  its  agents  in  New  York  to 
receive  the  goods,  and  that  when  the  ad- 
vances were  repaid  the  bills  of  lading  were 
to  lie  assigned  to  T.  W.  Griltln  &  Co. 
Tlie  authorities   clearly    sustain     these 


318 


FIRST  NAT.  BANK  v.  SHAW. 


eondueions.     Bank  of  Rochester  v.  Jones, 
mipra;  Haille  v.  Smith,  1  Bos.  &  Pull.  563; 
Tooke  V.  Holliuf^worth,  .5  T.  R.  21.5;  Allen 
V.  Williams,   12    Pick.    2!)7;    City    Bank    v. 
Rome,  W.  &  C).  R.  Co.,  44  N.  Y.  13G;  RawlR 
V.  Oeshler,  3  Keyes,  572.     The  subject  is  set 
forth    in    a  dear  light  in  the  ease  of  Haille 
V.    .Smith,  .supra.     In    that   ease   a   cai-fj;o 
was  consigned  to  bankers,  to  secure  them 
for  advances,  and  a  bill  of  ladin};  indorsed 
to  tlieni.     It  wasalso  understood  tliat  the 
itargo  was   to   be  sold  tor  the  account   of 
tlie  consif;nors,  whoreceived  theadvanccs. 
Subseiiuent  to  (he  consisnment  the  bank- 
ers applied   for   directions   respecting   the 
dis(;osal   of   the  cargo,  and  the  price  to  l)e 
asked.     The  court  held  that  this  arrange- 
ment did    not<'reate  the   relation  of  prin- 
cipal  and   factor,    but   that    the    bankers 
held   the  title  in  trust  te  effectuate  the  in-  i 
tent  of  the  parties.     The  consignors  had  a  j 
residuary  interest  so  as  to  gain    by  a   rise  j 
or  lose  by  a  fall  of  the  marxet  value  of  the  ! 
goods.     This  fact  however  only  related  to  , 
the  mode  in  which  the  trust  was  to  be  car-  ] 
ried   into   execution.     The  title  to  the  car- ; 
go  was   in   the   bankers,  who  had  the  evi- 
dence of  it  in  tlie  bill  of  lading,  which  was 
of  itself  upheld  by  the  valuable  considera- 
tion paid  for  the  transfer. 

Bank  of  Rochester  v.  Jones  is  to  the 
same  effect,  though  the  apparent  title  was 
not  so  clear  as  in  Haille  v.  Smith.  Jn  • 
that  case  one  Foster  applied  to  a  bank  to 
borrow  itfOoO  for  the  purjibse  of  buying 
two  hundred  barrels  of  tiour,  and  pro- i 
j)i>sed  to  leave  a  forwarder's  "receipt"' 
for  the  flour  so  purchased,  as  security  for 
the  acceptance  of  a  draft  to  be  drawn  on 
tlie  defendant  Jones.  This  proposition 
having  been  accepted,  the  "receipt"  was 
delivered,  and  purported  that  theforward- 
er  was  to  forward  two  hundred  barrels  of 
fiour  to  B.  P.  Jones,  Albany.  The  prt)- 
ceeds  of  the  draft  as  discounted  by  the 
bank  were  paid  over  to  the  seller  of  the 
flour.  It  was  the  understanding  that  if 
Jones  accepted  the  draft  the  "receipt" 
was  to  be  made  over  to  him.  Jones  de- 
clined to  accept  the  draft,  but  got  posses- 
sion of  the  flour.  In  an  action  of  trover 
brought  by  the  bank  against  Jones,  the 
question  was  whether  it  luid  such  a  prop- 
erty as  to  maintain  the  action.  It  will  be 
observed  that  there  was  no  bill  of  ladinj: 
in  the  bank's  name.  The  receipt  was 
drawn  in  favor  of  Jones.  The  title  of  the 
bank  did  not  rest  upon  any  form,  but  on 
the  substance  of  the  transaction.  After 
deciding  that  Jones  had  no  title  under  all 
the  circumstances  of  the  case,  the  court 
held  that  the  bank  had  either  the  special 
or  general  property  in  the  flour.  It 
said:  "The  true  ground  on  which  to  sus- 
tain this  transfer  of  property  to  the  bank 
is  by  regarding  the  transaction  as  a  sale 
to  the  bank  in  trust,  to  deliver  the  prop- 
erty to  Jones  in  case  heaccepted  thedraft, 
and  if  he  i-efused  to  accept  the  draft  then 
to  sell  the  flour  and  retain  out  of  the 
proceeds  the  amount  of  the  draft,  and  to 
pay  the  surplus  to  Foster."  4  N.  Y.  502. 
The  case  of  City  Bank  v.  Rome,  \V.  &  O. 
R.Co.  follows  thecnse  justcited,  and  holds 
that  the  delivery  of  a  bill  of  lading  by  an 
owner,  with  Intent  to  pass  the  title,  actu- 


ally passes  it,  whether  drawn  to  "as- 
sign.-i"  or  not,  and  if  drawn  to  "assigns," 
whether  it  be  indorsed  or  not.  In  this 
case  again  the  substance  of  the  transac- 
tion is  regarded  rather  than  the  form. 
The  only  material  point  is,  whether  there 
was  an  intent  to  pass  the  title  to  the 
goods  for  a  consideration.  The  intent 
may  be  either  to  pass  It  absidntely  or  c<in- 
ditionally,  or  in  trust.  Whatever  the 
intent  may  be  the  c(jurt  will  carry  it  into 
effect.  Following  these  authorities,  it  is 
necessary  to  hol<l  that  when  the  goods 
were  shipped  at  Toledo  the  plaintiff  helil 
the  title  to  the  grain  included  in  the  bill 
of  lading,  charged  with  a  trust  in  favor 
of  T.  W.  Gritlin  &  Co.,  to  whom  it  was  to 
be  made  over,  if  they  accepted  and  paid 
the  drafts  drawnag  aiust  it. 

It  is  now  necessary  to  examine  the  acts 
of  A.  L.  Gritiin  &  Co.,  at  Buffalo.  It  is 
plain  that  it  was  the  intent  of  the  parties 
that  the  grain  should  be  trans-shipped  at 
Buffalcj  to  New  Vork.  This  is  shown  by 
the  Toledo  bill  of  lading,  as  well  as  by  the 
known  course  of  business.  The  words 
"care  A.  L.  Grittin  &  Co."  made  those 
parties  consignees  at  Buffalo  only  pro- 
visionally, and  as  incidental  to  the  main 
object  of  the  transit,  which  was  to  end  in 
New  Yoi'k.  Their  authority  was  limited 
by  the  object  sought  to  be  accomplished. 
It  was  in  writing  disclosed  on  the  face  of 
the  bill  of  lading,  and  according  to  well- 
settled  principles  must  be  strictly  pursued. 
Their  whole  power  was  to  forward  the 
goods  to  the  same  consignees  on  the  same 
terms  as  stated  in  the  Toledo  bill  of  lad- 
ing. On  the  face  of  the  cauHl  bill  of  lading 
it  was  apparent  that  the  grain  had  come 
to  Buffalo  by  way  of  the  bikes;  and  any 
one  taking  that  bill  would  be  put  upon 
inciuiry  as  tu  the  authority  of  A.  L.  (irif- 
tin  &  Co. 

But  without  pursuing  this  line  of  inqui- 
ry it  is  enough  that  the  canal  bill  of  lading 
did  notdifferin  substnnce  from  theToledo 
iiill.  It  mentioned  the  same  consignees, 
the  same  owners,  the  bank,  and  had  the 
same  memorandum  as  to  the  interest. of 
T.  W.  (Jriffin  &  Co.  The  statement  that 
the  "freight  charges  and  demurrage  were 
payable  to  Young  Brothers,"  etc.,  was  of 
no  material  sianificance.  That  only 
showeil  with  whom  the  freight  was  to 
be  settled  on  behalf  of  the  carriers.  It 
cannot  be  considered  that  any  holder  of 
the  grain  could  possibly  be  misled  by  an 
entry,  the  ohject  of  wliich  was  so  plain 
and  unequivocal.  In  the  aspect  of  tin; 
case  most  unfavorable  for  the  pliiintiff, 
there  were  indications  on  the  canal  bill 
which,  under  the  rulings  in  Dows  v.  Per- 
rin,  supra,  an<l  in  Dows  v.  Greene,  were 
sufficient  to  lead  to  the  conclusion  that 
the  plaintiff  had  an  interest,  and  to  out 
any  person  who  took  the  goods  upon  in- 
(juiry  as  to  its  rights.  Gritfin  &  Co.,  ac- 
cordingly, ha<l  no  right  whatever  to  med- 
dle with  the  grain,  or  to  warehouse  it. 
The  entire  control  was  vested  in  Kidd, 
Pierce  &  Co.,  for  the  use  of  the  plaintiff. 
The  warehousemen,  Shaw  &  Co.,  were 
bounil  to  inquire  whether  a  bill  of  lading 
accompanied  the  shipment.  Their  cus- 
tom   to   make  no  inquiriea   but  to  ware- 


FIRST  NAT.  BANK  v.  SIIAW. 


319 


house  Kraifi  '">■  "uy  one  wlio  liail  tlio  poH- 
HPHHion  foul<l  not, in  any  respect,  preju'lice 
the  riulitH  of  the  plaintiff.  Ilaviii;r  wnre- 
lioiised  it,  Uiey  were  liounil  to  liold  tlie 
jrruiu  for  tl)e  ri«litfiil  owner,  ('ity  IJnnlc  v. 
Konie,  W.  &  O.  K.  Co.,  44  N.  Y.  141.  Their 
receipt  fiiven  for  the  firain  waH  no  protec- 
tion to  the  (Guaranty  and  In<leninity  ("o. 
Shaw  &  Co.  simply  trusteil  to  a  person 
liavint:  tlie  naked  possession,  witliotit  any 
title  or  indicia  of  it.  If  on  tliat  hare  pos- 
session tliey  issued  evidences  of  title,  tliey 
wen;  mere  waste  paper,  under  wliieli  the 
Kuaranty  company  can  mal<o  no  claim. 
.\  mere  possessor  cannot  confer  owner- 
sliip  hy  falsify  assertini;.  through  hills  of 
ladint;  or  warehouse  receipts,  that  he  has 
.1  title.  Saltus  v.  Everett,  L'O  Wend.  L'G"; 
:i2  Am.  Dec.  .-)41. 

It  is  however  claimed  on  tlie  part  of  the 
company,  that  it  is  protected  by  the  pro- 
visions of  the  so-called  "Factors  .\ct." 
iJiMore  consiilerinjiC  the  terms  of  that  act  it 
will  he  proper  to  notice  the  rules  <if  the 
common  law  as  to  the  power  of  factors 
anil  others  ha  vinj{  possession  of  the  f?(iods 
of  third  persons,  liavin^  documentary  ev- 
idence of  title  to  such  noods,  tr)  ple(lt;e 
them.  This  rule  has  been  tersely  stated 
by  Baron  Farke  (Lord  WensleyilaleJ,  In 
Phillips  v.  Huth,  G  M.  &  \V.  .")'.)G.  He  said  : 
"IJclore  the  passing  <jf  the  factors  act  it 
was  clearly  settled  that  a  factor  or  afjcnt 
for  sale  had  no  power  to  i)led}>e  whether 
he  was  in  possession  either  of  the  Koods 
themselves  or  of  the  symbol  of  the  rooiIs, 
and  even  thouffh  the  symbol  miRlit  bear 
on  the  face  of  it  sr)nie  evidence  of  the  pro|)- 
erty  bcin«-  in  himself,  as  in  the  case  of  a 
hill  of  lailiuK  in  which  he  was  consignee  or 
indorsee.  This  was  in  accordance  with 
the  general  rule,  that  he  who  deals  with 
one  ex  mandato  can  obtain  fi'om  him  no 
l)etter  title  than  his  mandate  enables  him 
to  bestow." 

lloweverloitical  thisrule  may  have  been, 
it  was  found  in  practice  to  bear  hard  on 
the  iutfrests  of  commerce.  To  remedy, 
some  of  the  inconveniences  caused  by  it. 
the  English  Parliament  enacted  a  number 
of  statutes.    4  Geo.   IV,  chip,   fv?;  (!  (ieo. 

IV,  chap.  04  (commonly  known  as  the 
Factors  Act).  5  and  (i  Vict.,  chap.  :?1).  The 
.Vew  York  act,  with  some  modifientions, 
is  a  reproduction  of  that  of  G  (Jeorp:e  IV. 

In  so  far  as  these  statutes  iiave  not 
changed  the  law,  the  former  rule  of  course 
prevails;  ami  the  holder  of  the  troods  of 
another,  with  or  without  documentary 
evidence  of  title,  has  no  greater  power  to 
pledjje  them   than  they  confer.     Paterscm 

V.  Tash,  -'StrauKe.  117S;  Daubif^ny  v.  Du- 
val, .'.  T.  H.  G04;  Lamb  v.  Attenboroush,  1 
Best  &  Smith,  s31. 

There  are  two  sections  of  our"Fa<'tors 
Act"  to  he  considered  in  their  relations  to 
the  present  case,  the  Hrst  and  the  third. 
The  first  proviiles  that  every  perst)n  in 
whose  name  any  merchandise  shall  be 
Hliippe<l  shall  be  deemed  the  true  owner  so 
far  as  to  cnUtle  the  con.siRiiee  of  such  luer- 
diandise.  acting  in  f;r>od  faith,  to  a  lien 
thereon,  (1)  for  any  money  atlvanced  or 
negotiable  security  jiiven  l>y  such  con- 
Bi>;nee  for  the  use  of  the  person  in  whose 
name   the  shipment   isiuade:  and  (!')  for 


any  money  or  ncKotiahle  paper  received  by 
the  person  in  whose  name  such  Hhipnient 
shall  have  been  madi-  for  the  use  of  the 
consignee.  It  is  plain  that  this  section 
has  noapplicntion  to  the  present  case,  aa 
it  has  been  shown  that  the  shipment  can- 
not be  deemed  to  be  made  In  the  name  of 
(Jrlllin    &   Co. 

The  third  section  of  the  net  provides 
that  every  factor  or  other  n>reiit  Intrusted 
with  the  possession  of  any  bill  of  lading, 
customhouse  [lermit  or  warehouse  keep- 
er's receipt  for  the  delivi-ry  of  any  "such" 
merchandise  (referring  to  thetirstMi'ction) ; 
and  every  such  factor  or  astent  not  hav- 
injr  the  documentary evideiiceof  title,  who 
shall  be  Intrusted  with  the  possessiun  of 
any  merclianilise  for  the  purpose  of  sale, 
or  as  security  for  any  advances  to  be 
made  or  ohtaineil  thereon,  shall  be  deemed 
to  be  the  true  owner  thereof  so  far  as  to 
frive  validity  to  any  contract  made  by 
such  Ufient  with  any  othei  person,  for  the 
sale  or  ilisposition  of  the  wh<de  or  any 
part  of  such  merchnndiHc,  for  any  money 
advanced,  etc.,  Iij'  such  other  person  oa 
the  faith  thereof.     Laws   ls:!u.  chap.  I7'J. 

It  is  urned  by  the  defendants  that  the 
fact  that  the  forwardiuK  house  at  Ituffalo 
sent  the  canal  bill  of  ladinK  lo  T.  \V. 
<Jri(fin  &  Co.  brings  the  case  at  bar  within 
this  section. 

To  sustain  this  view,  it  is  necessary  to 
show  that  (ii-iffln  &  Co.  were  factors  or 
aiients,  that  they  were  "intrusted  "  with 
the  bill  of  lading  for  the  delivery  of  such 
merchandise  as  was  provided  for  in  the 
first  section,  and  that  an  advance  was 
made  to  them  on  the  faith  of  the  docu- 
ment with  whicli  they  were  intrnstcd. 

It  needs  no  argument  to  show  that 
firiirin  i»i  Co.  were  not  factors  of  the  pluln- 
tii'f.  The  statute  i)resui)poses  that  the  re- 
lation of  principal  and  factor  already  sub- 
sists when  the  trust  or  conlidence  is  re- 
|)oscd  in  him.  In  other  words,  the  rela- 
tion of  factor  is  not  created  ny  the  mere 
possession  of  the  instrument.  tln>uy:h  that 
may  raise  a  presumption  when  in  the  al- 
leged factor's  name,  otherwise  the  rela- 
tion is  to  be  proved  aliunde.  Cook  v.  lieal, 
1  lUisw.  4!)7.  Nor  can  (irillln  &  Co.  l:e  re- 
jrarded  as  agents  of  theplaintiff.  .No  pow- 
er was  sriven  in  the  lake  bill  of  ladinR  to 
make  them  the  nucnls  of  the  plaintiff,  and 
if  the  Buffalo  house,  without  authority, 
sent  the  canal  bill  of  ladin;r  to  them,  tliey 
did  not  therooy  become  aKcnts.  since  that 
relation  could  only  be  created  by  the  act 
Of  the  iilaintiff.  Lamb  v.  AttenborouRh, 
1  Best  &  Smith,  s.11. 

It  cannot  be  claimed  that  tirirlln  &  Co. 
were  intrusted  with  the  possession  of  the 
merchandise.  If  "intrusted"  with  any 
thin;:,  it  must  have  been  with  the  bill  of 
ladinR.  It  is  accordin;:ly  nei-essary  to 
Rive  a  construction  to  the  statutory 
words  "intrusted  with  tlie  possession  of 
a  bill  of  ladin;:  of  any  such  merchamllse," 
etc.  The  word  " intrusted"  here  implies 
conHdence  reposed.  If  the  bill  hail  be.Mi 
stolen,  there  wotdd  have  been  no  Intrust- 
ing. The  consent  of  the  owner  la  necessa- 
ry? True,  it  may  be  obtaine  1  by  fraud. 
Sheppard  v.  I'nion  Bank  of  Lomloa,  7  H. 
&  N.  GGl  ;  Uow8  V.  tireene,  24  N.  Y.  oas.  But 


:i20 


FIRST  NAT.  BANK   »   SHAW. 


it  must  in  sonif  form  be  liail.  Tliere  was 
Iiere  no  trust  Uy  the  <»wner;  the  luke  bill 
of  lii(tin(r  jjiive  no  authority  to  A.  L.  Grif- 
lit!  &  Co.  to  repose  any  eonliilence  in  T. 
W.  Utitlin  &  Vi>.  Af^ain.  the  sami  word 
"intrusted"  refers  to  a  bill  of  lading  in  the 
name  of  the  factor  or  other  agent.  This 
is  assumed  in  all  the  Knslish  eases.  It 
was  expressly  so  defined  in  the  first  fac- 
tors act,  4  (Jeo.  IV,  §  1.  The  court,  in  Phil- 
lips V.  Huth,  supra,  said:  "The  first  sec- 
tion of  the  act  shows  that  the  word  'in- 
trusted,' was  uot  unimporiJ'.nt,  and  was 
advisedly  introduced,  for  it  provides  that 
the  person  in  whose  name  the  ^oods  shall 
be  shipped  shall  be  deemed  to  be  intrusted 
therewith  for  the  purposes  of  the  act,  un- 
less the  contrary  thereof  shall  appear  or 
be  shown  in  evidence  by  the  person  dis- 
puting the  fact."  Page  ijllG.  This  con- 
struction is  strengthened  by  the  words 
"such  merchandise."  Thelanguaj^e  is  that 
evei'v  factor,  etc.,  intrusted  with  the  pos- 
session of  any  bill  of  lading,  etc.,  for  the 
delivery  of  any  "such"  merchandise  (re- 
ferring to  the  first  section),  *  *  *  shall 
be  deemed  to  be  the  owner  thereof.  On 
examining  the  first  section,  it  is  found  to 
apply  only  to  cases  where  the  merchan- 
dise is  shipped  in  the  name  of  the  person 
who  assumes  to  control  it.  (^artwright 
V.  Wilmerding.  24  N.  Y.  521.  On  the  other 
hand,  when  the  case  of  a  factor,  etc.,  not 
having  any  documentary  evidence  of  title, 
but  having  possession,  is  provided  for  in 
the  statute,  the  word  "such"  is  omitted, 
and  the  vvord  "any"  is  substituted  in  its 
place.  Section  ;i  thus  provides  for  two 
entirely  distinct  classes  of  cases:  one, 
whore  the  factor,  etc..  has  documentary 
evidence  of  sui'h  merchandise  as  is  i-eferred 
to  in  the  first  section,  running  to  himself; 
the  other,  where  he  is  intrusted  with  the 
possession  of  any  merchandise  whatever, 
forthe  purposeof  sale.  In  the  first  of  these 
cases  the  evidence  must  becomplete,  point- 
ing to  liimself  as  owner,  and  with  no  no- 
tice, l)j'  the  bill  of  lading  or  otherwise, 
that  he  is  not  the  actual  and  bona  tide 
owner.  See  §  2,  and  Cartwrlght  v.  Wil- 
merding, 24  N.  Y.521  ;  Bonito  v.  Mosquera, 
2  Bosw.  401. 

Moreover,  the  defendant,  the  guaranty 
company,  did  not  advance  the  money  to 
Griffin  &  Co.  on  the  faith  of  the  bill  of  lad- 
ing, etc.  This  Is  one  of  the  requirements 
of  the  factors  act.  Jennings  v.  Merrill,  20 
Wend.  9.  It  acted  on  the  warehouse  re- 
ceipt of  Shaw  &  Co.,  which  was  itself  is- 
sued without  any  reference  to  documenta- 
ry title,  and  relying  only  on  the  manual 
and  unautliorize(l  possession  of  Griffin  & 
Co.  Even  if  the  bill  of  lading  had  been  be- 
fore the  defendant,  it  could  not  properly 
be  said  to  act  on  the  faith  of  it,  as  it  would 
have  had  constructive  notice  that  the 
goods  were  not  "intrusted "  to  Griffin  & 
Co.,  not  being  in  their  names.  Bonito  v. 
Mosquera,  2  Bosw.  401;  Pegram  v.  Car- 
son, 10  id.  M't;  Cartwrlght  v.  Wilmerding, 
24  N.  Y.  ."):B.  The  only  explanation  oon- 
sistent  with  good  faith  that  can  be  given 
of  the  possession  by  Griffin  &  Co.  of  the 
canal  bill  of  lading  is,  that  they  were  mere 
bailees  of  it  to  hand  to  Ividd,  Pierce&  Co., 
or  that  they  receiveJ  it  by  mistake.   There 


was  no  evidence  to  show  fraud  or  collu- 
sion on  the  part  of  the  Buffalo  house,  and 
these  are  not  to  be  presumed.  Nothing 
could  be  more  contrary  to  established 
and  elementary  princijiles  than  to  hold 
that  a  mere  bailee  of  a  bill  of  lading,  such 
as  a  tinder  or  depositary,  having  no  ap- 
parent title  to  it,  could  make  a  valid 
transfer  of  it  or  create  a  lien  upon  the 
goods  which  it  reprpsents,  in  favor  of  a 
third  person  who  might  make  advances 
to  the  possessor,  with  or  withoiit  knowl- 
edge of   the  actual  state  of  tacts. 

The  defendants  take  an  additional 
ground.  It  was  urged  that  the  plaintiff 
has  l(}st  his  rights  under  the  bill  of  lading 
"through  his  negligence  in  not  observing 
the  arrival  of  the  canal-boat."  It  Is  not 
perceived  how  any  remissness  snbsecjuent 
to  the  advances  made  by  the  guaranty 
company  would  affect  the  plaintiff's  rights. 
Whatever  interest  the  defendant  ac(|uired 
accrued  on  the  17th  of  October,  when  the 
advance  was  iiiade.  The  boat  arrived  on 
the  Kith.  This  theory  of  negligence  must 
rest  on  the  view  that  the  plaintiff's  claim 
was  a  mere  lien.  It  has  already  been 
shown  that  this  was  not  the  case,  but 
that  the  plaintiff  had  the  tille.  The  court 
below  laid  some  stress  on  the  fact  that  the 
plaintiff's  cashier  stated  in  Iiis  testimony 
that  the  transacti4in  was  a  pledge.  His 
version  of  a  transaction  entered  into  by 
written  instruments  is  not  binding  on  the 
court.  However,  even  if  the  transaction 
constituted  a  pledge,  the  rule  whicdi  holds 
that  a  mere  lienor  may  lose  his  lien  by 
negligence,  etc.,  is  not  applicable.  A 
pleilgee  has  something  more  than  a  mere 
lien.  He  has  a  property  in  the  goods  and 
not  simpl.v  a  right  to  hold  them  as  In  the 
case  of  a  lien.  The  negligence  of  the  plain- 
tiff, under  the  circumstances,  is  wholly  im- 
material. The  rights  of  the  defendants 
depend  on  the  question  whether  Griflin  & 
Co.  were  in  any  form  held  out  by  theown- 
ers  as  entitled  to  control  the  grain.  That 
point  can  only  be  determined  by  the  fair 
construction  of  the  bill  of  lading.  If  the 
guaranty  company  saw  tit  to  act  on  theso- 
called  warehouse  receipt,  which  Itself  had 
no  solid  foundation,  it  acted  at  its  peril. 
It  should  have  inquired  into  the  title  and 
have  examined  the  documentary  ev'dence 
accomiianving  the  shipments  of  the  grain. 
City  Bank  v.  Home,  W.  &  O.  H.  (;<)., supra. 
It  cannot  shield  itself  from  this  obligation 
by  imputing  negligence  to  the  plaintiff, 
which  was  not  bound  toward  mere 
strangers  to  be  diligent  in  looking  after 
its  property  while  in  the  possession  of  the 
carrier.  Even  if  there  was  some  evidence 
of  negligence,  it  depended  so  much  on  a 
variety  of  circumstances  that  it  should 
have  been  left  to  the  jury  to  determine 
whether  the  plaintiff  had  been  guilty  of  it. 
Without  dwelling  upon  this  point,  it  is 
enough  to  say  that  the  question  of  negli- 
gence does  not  enter  into  the  case. 

The  defendant  further  claims,  that  as 
(jrifRn  &  Co.  had  paid  for  the  grain,  on 
account,  .^1,945.S0,  and  as  the  guaranty 
company  had  acquired  Griffin's  Interest,  it 
was  absolutely  necessai-y  to  the  mainte- 
nance of  this  action  that  this  amount 
should  have  been  tendered  by  the  plaintiff. 


FIRST  NAT.  BANK  r.  SHAW. 


821 


TliiH  is  u  inis-ooncpption.  If  Griffin  &  Co. 
Iitid  <Jctniii('il  the  iiroporty,  no  Hiicli  i)!iy- 
iDfiit  woiilil  hiivo  lieeii  nvcissiiry.  im  the 
poHHcssiiry  rif^lit  of  tlio  piiiiiliff  wonlil 
liuvo  foiitiiiueil  superior  to  that  of  (iriIMn 
&()().  until  till?  entire  iji'ht  wan  paiil.  The 
Ku.'iranly  eoiiipany,  Htaiulinir  in  Gridin'w 
position  and  acquiring  lilHritilitM.can  have 
no  greater  claim. 

TIk,"  court  helow  were  requested  to  in- 
struct tlie  jury  tliat  as  far  as  the  defend- 
ants were  concerned,  if  n  verdict  was  ren- 
dered ill  tlieir  iavor,  tlie  v;ilue  of  tlie  prop- 
erty should  only  l)e  assessed  at  file  ad- 
vaiiccM  made  liy  the  guaranty  company, 
and  intrrrest.  This  instruction  was  refused 
under  exreplioii,  and  an  instruction  was 
Kiveii  that  the  entire  value  of  the  proper- 
ty sliould  be  fouinl.  This  ruling  was  erro- 
neous. In  any  aspect  of  the  cast  ,  the 
plaintiff  had  not  lost  its  lien  as  liclween 
it  and  tirillin  &  Co.  The  case  is  Roverned 
liy  the  rule  in  Townsend  v.  IJargy,  .')"  N. 
Y.  (iii.').  This  is,  that  the  value  to  lie  as- 
sesseil  as  a;;ainst  the  owner  or  his  repre- 
sentatives is  the  creditor's  claim,  with  in- 
terest. 

The  result  of  the  discussion  nia.v  now  lie 
suninied  up.  Tlie  title  to  tlicij;rainin  con- 
troversy was  held  at  Toledo  by  the  iilain 
tff  in  trust,  and  after  its  own  advances 
were  paid  any  residuary  interest  was  to 
lie  made  over  to  T.  W.  Grillin  ..t  Co.  The 
can.-sl  hill  of  lading  recognized  the  true  re- 
lation of  the  iiarties  and  left  the  title  in 
the  same  way.  The  fact  that  this  hill 
came  into  the  hands  of  Griltin  &  Co., 
through  the  act  of  Voung  Brothers,  was 
of  no  importance,  as  the  hill  did  not  im- 
port a  delivery  to  the  former  linn.  Shaw 
&  Co.  could  not  safely  repose  on  the  mere 
possession  of  Grittin  &  Co.,  but  were 
bound  to  look  into  the  shippiiiL.'  docu- 
ments, and  are  aci-ordingly  churgealili- 
witli  constructive  notice  of  their  contents. 
The  guaranty  company  are  in  the  same 
position  with  Shaw  &  Co.  The  ware- 
house receipt  being  mere  waste  pajier, 
that  company  can  claim  no  rights  umler 
It.  Such  a  "warehouse  receipt"  is  not  one 
intended  by  the  factors  act.  That  refers 
to  the  receipts  given  in  foreign  trade  or 
Importation.     Cartwright  v.  VVilmerding, 

LAW  SALES — 21 


24N.  Y.  iJ2s.  Rven  if  It  were  within  the 
intent  of  the  act,  it  wouhl  nut  help  the  de- 
fendants, as  It  did  not  rest  on  any  conll- 
ilence  or  trust  repo.-<ed  by  Hie  owner  in 
them,  or  ill  those  from  whom  they  receiveil 
possession. 

The  plaintiff  accordlnglycould  maintain 
an  action  of  replevin  against  these  defend- 
ants based  on  its  (iroperly,  whether  gen- 
eral or  special,  in  the  goods. 

•  'onsiileiable  stress    was  laid    nt  the  ar- 
gumr-n I.  by  counsel  on  either  side   of   the 
!euse,  ontlie  great   consequenccM    to  com- 
!  merce   <if   a  decision  in  thin  cause  udverHn 
I  to   their   respective    views.       Finding   the 
principles   of   law   clearly    settled,  we   are 
bound    to  administer    them    as    they  have 
'  conx-   down  to  us   from  our  predecesHors. 
We    however    believe  that  n    decision  can- 
not, on  the  wlKjle,  lie  adverse  to   eominer- 
[  cial   Interests,  which,    while   It    re:-ogni7,en 
I  the    convenience   of    merchants    and    the 
I  great  value  and  importance  of  t  he  factors 
I  act,  requires  of  those  who  ailvance  money 
I  on  commercial  documents  the  observance 
of  reasonable  diligence  and  the  obligation 
to    make  reasonable   inquiry,  and  enables 
owners   of   |iro]ierty    on    the   creat  trans- 
portation lines  of  inland  romnierce    to  se- 
cure it  from  the  fraud.s   and  deiiredations 
of  mere  custodians   and    bailees,  in  wlKjni 
no   special  conlidence   is    reposed.      While 
commercial  convenience  must  be  respected, 
the  rights  of   [iroperty  must    not  be  sacrl- 
liceil.     It   is  not  a  ca^e  for  the  application 
of  the  rule,  that  where  one  of  two  persons 
must  suffer,  that  one  must  susliiin  theloss 
who    has     reposed    the    conlidence.        No 
confidence   has  been  reposed  In  the  person 
under    whom    the  defendants  claim.     On 
the   other   hand,   great  care  was  taken  to 
keep  the  title  to  the  property  and  the  Indi- 
cia of   ownership    regularly   In    the   plain- 
tiff.    The    true   interests   of  commerce  de- 
mand that  the  claims  under  bills  of  lading 
and    other  such    instruments     should    t)e 
scrupulously    protected,    since    commerce 
will  not  flourish  where  the  rights  of  prop- 
erty are  not  respected. 

The  judgment  of  the  court  below  should 
be  reversed  and  a  new  trial  ordered. 
All  concur. 
Judgment  reversed. 


I 


FOOT  V.  MARSH. 


S23 


FOOT  T.  MARSn. 

(51  N.  T.  288.) 

Commission  of  Appeals  of  New  York.    Jan. 
Term,  1873. 

Action  by  N.  15.  I'doI  &  Co  ugainHt 
Mursli,  Deliiye  &  KoKt'i'n  to  recover  for  a 
hreadi  of  a  contract  for  tlio  Bale  of  certain 
oil.  DofendniitH  had  an  option  to  piirchaKC 
inO  bnrrelH  of  oil  of  three  clifferent  jjrailcH. 
Jind  offered  100  harrelH  to  plaintifffi,  siiow- 
iiiK  them  a  Kani()le  taken  from  the  nilddle- 
;irade  oil.  Ah  tlie  linrrels  contained  differ- 
ent ()uantitles,  it  was  agreed  that  they 
shoulil  contain  an  averau'e  of  40  jiallonn. 
Tlie  evidence  waH  contlictinK  as  to  wliether 
the  piircliaKerH  whould  a.ssunie  the  rmk  of 
leakage,  and  defendants  agreed  to  set 
apart  100  barrels,  averaKinf?  W  gallons 
each.  After  the  aRreement  forthe  salewa.'; 
niaile,  plaintiffs  gave  defendants  their  note 
for:ff7.")0,  and  received  from  them  thcfollow- 
ing  receipt;  "N.  15.  Foot  &  Co.  honght  of 
.Marsh,  Delaye  &  Hojrers  10(1  l)arrelH,  at 
twelve  HhillinKS,  $ir)0:  -1.000  gallons  of  oil, 
at  eighteen  cents,  .IfTiiO— .f s70.  Received 
payment  by  note  al  three  months  from 
.1  line 7,  ISO:!.  .Marsh,  Delayed  Rogers.  The 
above  oil  is  to  be  delivered  when  calleJ 
for,  Hiibject  to  twenty  shillings  per  month 
storage,  and  the  (juality  of  the  oil  is  to  l)e 
like  the  sample  delivered.  Marsh,  Delaye 
&  Rogers.  "  Defendants  accepted  the  option 
for  the  l.'iO  barrels.  Rialntifls  paid  their 
note,  and  weie  shown  100  l)arrels,  contain- 
ing about  l.*<00  gallons, worth  fi-om  .'>  to  M 
cents  a  gallon  less  than  the  sample  by 
which  they  bonght.  The  court  charged 
that  if  there  was  an  agreement  to  set  aside 
100  barrels  of  40  gallons  each,  e(iu;il  in 
<iuality  to  the  sample,  and  defendants  did 
so.  the  oil  was  thenceforth  at  plaintiffs' 
risk  ;  but.  If  there  was  no  such  agreement, 
plaintiffs  were  bound  to  deliver  4,000  gal- 
lons whi'n  called  for.  .ludgmcnt  was  ren- 
dered for  plaintiffs. 

D.  M.  K.  Johnson,  for  appellants.  J.  D. 
Kernan,  for  respondents. 

CinAY.  C.  The  principal  question  pre- 
sented for  our  consideration  arises  u|)on 
the  defendants'  exception  to  that  por- 
tion of  the  charge  given  l)y  the  judge  to  the 
jury,  in  whicli  he  stated,  in  substance, 
that  if  no  agreement  was  madeor  author- 
ity given  to  the  defendants  to  sit  apart 
for  the  plaintiffs  the  oil  described  in  the 
contract,  then  the  contract,  from  its 
terms,  l)ecame  a  contract  to  deliver  four 
tlionsand  gallons  of  oil  wlien  called  for, 
and  that  the  dcfendiints,  in  order  to  com- 
ply with  the  call,  werel)ound  tohavethat 
quantity  on  haixl  whene\er  the  call 
should  bo  marie.  This  case  is  by  the  de- 
fendants liuened  to  the  case  of  Kimberlv 
V.  Patchin.  l!)  N.  Y.  :i:!0;  7.'>  Am.  Dec.  .•i.i4; 
and  the  ground  upon  which  this  portion 
of  the  charge  is  claimed  to  l)e  erroneous 
Is,  that  the  contract,  when  read  by  the 
light  of  the  circumstances  surroundlrig  it. 
Is  in  principle,  like  the  contract  In  that 
case  for  tliesule  of  six  thousand  l)ushels  of 


wheat,  parcel  of  six  thousand  two  liua- 
(Ired  and  forty-nine  bushels,  ut  seventv 
cents  per  bushel,  of  which  no  separatioD 
or  manual  delivery  was  made,  but  uh  a 
substitute  for  a  manual  cli-livery,  and  to 
constitute  the  contract  for  its  sale  an  exe- 
cuted, not  an  executory  contract,  the 
vendor  gave  to  the  purchaser  Ids  receipt 
for  it,  agreeing  to  deliver  It  to  his  order, 
free  of  all  charges,  whereupon  the  vendor 
was  held  to  ha  ve  constilnteil  JilmKelf  th? 
bailee  of  the  wheat,  and  to  have  thence- 
forth stood  in  that  relation  to  the  |iur- 
chaser  and  the  property;  to  render  the 
contract  effectual  as  an  executed  contract 
from  Ihethneit  was  nia<le,  the  purchaser 
must  have  been  investeil  with  the  right, 
after  demand,  to  take  the  property.  This 
was  a  right  the  delenitants  at  the  time  of 
making  the  sale  hati  no  power  to  confer, 
they  not  l)elng  at  the  time  the  owners  of 
any  portion  of  it;  nor  <li(l  they.  In  the 
place  of  a  manual  delivery,  give  to  the 
plaintiffs  their  receipt  for  it,  and  thus  at- 
tempt to  constitute  themselves  the  bailees 
of  the  plaintiffs  and  of  the  r)il,  as  did  the 
vendor  of  the  wheat  in  Kiinberly  v. 
Patchin.  If  tlie  one  handi'cd  and  flfty 
barrels  of  oil  of  which  the  one  hundred 
barrels  anci  the  four  thousand  gallons 
were  understood  to  be  n  part,  were,  like 
the  wheat,  all  of  the  same  i|uallty,so  that 
nothing  but  the  (luantity,  without  refer- 
ence to  quality,  was  to  be  taken  from  the 
larger  amount,  the  extrliisicfacts  that  the 
sale  was  at  a  prolit  of  only  two  cents  per 
gallon,  and  the  risk  of  leakage  during  the 
summer  months  so  largely  exceede(l  the 
])rolits  of  the  sale.  It  might  be  urged,  with 
more  plausibility  tlinn  It  now  can.  that 
the  agreement  of  the  defendants  to  deliver 
the  barrels  and  oil  when  called  for  wan 
like  the  agreement  conlnined  In  the  receipt 
in  Kiinberly  v.  Patchin  to  ilelivi-r  Hie 
wheat  to  the  order  of  tin-  purchaser,  and 
that  the  defendants  should,  under  the  cir- 
cumstances, as  was  the  vendor  In  that 
case,  be  regarded  as  the  bailies  of  the 
plaintiffs.  I'lit  in  order  to  substitute  an 
arrangement  between  the  parties  for  a 
manual  delivery  r)f  n  parcel  of  property 
ntixed  with  an  ascertained  and  dellneiJ 
larger  quaiitity.it  must  lie  so  dt  arly  di»- 
tined  that  the  piircliaser  can  take  it,  or  as 
the  assignee  of  the  punhaser  tlid  In  Kiin- 
berly V.  Patchin,  ni'iiiiiaiii  replevin  for  It. 
In  this  case  the  larger  quantity,  parcel  of 
which  wa.s  under.'»toi'd  to  be  contracted 
to  the  plaintiffs,  consisted  of  one  hundred 
and  fifty  liarrels  containing  three  illfferent 
qualities  of  oil,  but  sixty-eight  of  which 
(forty-seven  of  the  Rnffalo  and  Krie  idl 
and  twenty-one  liarrels,  marked  V.  U.) 
corresponded  with  the  sample  by  which 
the  one  hundred  barrels  were  sold.  The 
residue,  forty-six  barrels  of  the  Murray 
oil.  was  superior  to  the  sample;  and 
thirty-six,  known  as  the  Lemon  oil,  wore 
Inferior  to  the  sample.  The  plnlntiffs 
would  not  have  the  right  to  take  the  .Mur- 
ray or  superior  oil.  and  could  not  be  coni- 
peiled  to  t/ike  the  I.emon  or  Infetlor  oil. 
And  If  the  sample  was.  as  the  witness  at 
one  time  stated,  a  poor  sani|>le  of  flie 
most    inferior   oil,  then  but  thirty-six  bar- 


324 


FOOT  V.  MARSH. 


rele  of  that  description,  containiiiK  Icsk 
tlian  one  thousand  five  hundred  gallons, 
could  have  been  selected  from  the  whole 
quantity,  and  hence  tlie  plaintiffs  were 
without  adequate  means  of  redress,  un- 
less by  action  for  failing  to  deliver  the 
quantity  of  oil  sold  conforniing  to  tlie 
sample.  The  fact  that  the  oil,  which  was 
the  subject  of  the  sale,  was  understood  by 
the  plaintiffs  to  be  a  parcel  of  a  larger 
quantity,  and  that  the  sale  was  made  at 
a  profit  of  only  two  cents  per  sailon, 
while  the  risk  of  loss  by  leakage  and 
evaporation  was  very  large,  are  circum- 
stances that  would  go  far  to  prove  that 
the  defendants  did  not  understand  the 
legal  import  of  the  writing  drawn  and 
subscribed  by  them,  or  that  they  were 
overreached  by  the  plaintiffs,  wlio  sug- 
gested tlieir  terms  after,  as  one  of  them 
had  testified,  they  refused  to  piirclinse,  un- 
less the  defendants  would  guarantee  them 
against  leakage,  which  the  defendants  re- 
fused to  do.  But  as  no  question  was 
raised  by  the  pleadings,  or  elsewhere,  as 
to  a  reformation  of  the  contract,  we  must 
regard   it   as  expressing  the  intentions  of 


the  ijarties  and  give  it  the  interpretation 
which,  under  the  circumstances,  its  lan- 
guage plainly  imports.  Tlie  charge  was 
more  favorable  to  the  defendants  than  a 
fair  construction  of  the  written  contract 
warranted.  The  conversations,  out  of 
wliich  the  defendants  sought  to  establish 
an  agreement  between  the  parties  that 
the  defendants  might  set  apart  the  one 
hundred  barrels  of  oil  for  the  plaintiffs, 
as  well  as  the  conversations  as  to  the  guar- 
anty against  loss  by  leakage,  were  all 
prior  to  the  reduction  of  their  agreement 
to  writing  and  should  have  been  excluded 
from  the  consideration  of  the  jury,  lea  v- 
ing  the  writing  as  the  only  evidence  of  \  he 
agreenient  to  be  interpreted  by  the  aid  of 
extrinsic  facts.  No  error  was  committed 
in  the  instructions  to  allow  interest.  The 
verdict  was  more  favorable  to  the  defend- 
ants than  the  charge  warranted  ;  of  that 
however  tliey  cannot  upon  this  appeal 
complain. 

The  order  appealed  from  should  be  re- 
versed. 

All  concur. 

Order  reversed. 


GAXSON  V.  MA  DIG  AN. 


327 


GANSON  et  al.  v.  MA  DIG  AN. 


(15  Wis.  144.) 


Supreme  Court  of  Wisconsin. 
1882. 


January  Term, 


Appoal  Iruin  circuit  court,  OoiIkp  county. 

Action  hy  (iiuiHon,  Huntley  &  t'o.  UK'iiiist 
one  .MiiiliKiin  to  rocover  fur  the  price  of  »i 
reiipin^  inucliiiie  allcneil  to  Iiav3  Iteen  de- 
livered on  liJH  writli'U  order.  MadiKun 
HlKued  an  order  in  Keliruary,  ls.j.">,  reqiiest- 
iUK  (iiinHoii.  Huntley  &  Co.  to  manufac- 
ture and  deliver  to  liiiii  on  or  before  .luly 
1,  IfS.Vi,  at  Milwaukee,  at  UouHcuian  <Si 
('o.'h,  a  patent  Kelfrakin;;  reaper,  war- 
ranted with  one  man  and  a  nood  team  to 
cut  and  rake  from  12  to  lid  acnw  n  day,  for 
which  he  n>;reed  to  pay  on  delivery  S.'ill, 
and  $110  Deci'nilier  l.st  folio wiuR.  The 
order  provided  that,  if  the  reaper  at  the 
ne.xt  harvest  did  not  perform  aR  t-pecified, 
the  purchaser  "will  Htore  it  Hafely,  ami 
deliver  It  to  (ianson,  Huntley  \-  Co.,  or 
their  airent.suliject  to  the  rcfuiidinK  of  the 
$.■)()."  When  he  ciilled  for  the  reaiier  at 
the  time  and  |)laee  specilied.lie  waw  shown 
the  separate  pieces  of  a  nuinher  of  reaiiers 
of  identical  form  and  size,  and  was  told 
by  DouHenian  it  Co,  that  one  of  them  was 
for  him,  and  they  would  put  one  up 
for  him  if  he  would  take  it,  liut  he  refused. 
In  "{iviiij;  instr-uctiuns  to  the  jury,  the 
judsesaid:  "After  an  examination  of  all 
its  [larts,  the  cr)ntract  between  the  par- 
ties in  thisactio[i  IsauibiKUous ;  and  your 
first  duty  wMl  be  to  ascertain,  fi'om  the 
contract  and  from  oral  evidence  which  has 
been  reci  ived  to  explain  it,  what  this  eon- 
tract  really  means.  You  are  to  construe 
ti.e  term  '  a  irood  team,' as  used  by  the 
parties  in  this  contract,  and  lind  from  all 
the  evidence  on  that  subject,  whether  it 
means  a  t;ood  two-horse  team,  or,  il  not, 
what  kind  of  team  it  does  mean.  If  you 
find  that  the  plaintiffs  did  deliver  a  ma- 
chine acconliiiK  to  at;reemenl.  then  they 
are  entitled  to  recover  whatever  damayres 
they  have  sustained  by  the  defendant's 
refusal  to  receive.  The  rule  of  damages 
is  the  difference  between  the  contract 
price  and  the  actual  value  of  the  reaper 
on  the  1st  of  .Inly,  IS,"!.'),  the  day  «iiec- 
ilied  for  the  <lelivery,  together  with  any 
exi)enses  iucuried  by  the  i)lainliff.  "  At 
the  request  ol  the  defendant,  the  judue 
bIho  instructed  the  jury  "  that ,  if  the  ma- 
chine did  not  answer  the  terms  of  the  or- 
der as  to  capacity  and  power,  the  defend- 
ant was  not  oliii^jed  to  take  it ;  it  beinn  a 
condition  precedent  to  the  reception  of 
the  machine  and  the  i)aynient  of  the  .'S.iO 
mentioneil  in  the  order  th.it  the  plaintiffs 
iiliouhl  manufaclureund  deliver,  or  offer  to 
deliver,  for  defendant,  a  machine  of  the 
l)Ower  and  capacities  desiy;nated  in  the 
order.  If  the  jury  believe  fiom  the  testi- 
mony tliat  the  tea  in  referred  to  means 
one  Kood  i)air  of  horses,  ami  that  the 
rea|)erfuinislied  at  Doiiseman  & '/o.'s,.!  uly 
1.  I^.'l.">,  for  the  defendant,  was  a  four- 
liorse  machine,  and  re(|uired  four  horses 
to  work  it  up  to  the  wariaaty  of  twelve 
to  twenty  acres  a  d,iy.  the  defenilant  was 
iinih-r  no  obli;;ation  to  receive  it.  If  the 
jury  believe   that    the  words  "jjood   team' 


mean  two  horses,  and  that  It  Ih  proved 
tluit  these  machines  could  not  be  opera  ted 
with  two  horses  up  to  the  warranty  at 
nil  reasonable  times,  then  theverilict  must 
l)e  for  the  defendant.  The  fact  that  said 
machines  were  occusionully  operated  with 
two  horses  is  not  suMiclenl  proof  loeMtab- 
lisli  tliat  the  capacity  of  the  michim-  was 
e<|ual  to  the  warranty."  The  plainlirTrt 
reipiested  the  jud^e  to  uive  the  following 
Instructions,  all  of  which  were  refused: 
"(1)  If  the  jury  believe,  from  the  evidence, 
that  the  plaintiffs  fullilleil  the  contract  uri 
their  part  by  the  manufacture  of  a  reaper, 
and  tile  delivery  of  the  same  to  Douseman 
&  Co.,  <m  ur  before  the  1st  of  Jidy.  !>*.">'), 
as  called  for  hy  the  contract,  the  pl.iintlfl.* 
areentitled  to  recover  in  this  action  the 
contract  price,  with  interest.  ("Ji  'I'hat  it 
was  not  necessary  that  the  plaintiffs 
should  mark  or  set  apart  any  [larticidur 
reaper  for  the  defendant  to  entitle  them 
to  recover  the  ctmtruct  i»rice;  that  If  the 
jury  lieliove,  from  the  evidciice.  Hint  the 
Iilaintiffs  ;iianufr.ctui-eil  and  delivered  to 
Douseman  ii  Co.,  for  the  defendant,  on  or 
before  the  1st  ilay  of  .luly,  l"-.'>."i.  sm-h  a 
reaperas  the  contract  called  for.  the  plain- 
tiffs performed  the  contract  on  their  part, 
and  are  entitled  to  recover  the  contract 
price,  with  interest,  thouKh  tin-  reaper  for 
tlie  defendant  was  not  separateil  from 
other  reapers  sent  to  Doiisi'iiian  &  Co.  Iiy 
the  plaintiffs,  or  any  partirular  reaper 
tendered  to  the  defendant.  (:!i  That  this 
action  is  brought  to  recover  the  eontrnct 
price  of  tlie  reaper;  anil,  if  entitled  to  r  •- 
cover  at  all,  the  plaintiffs  are  entitled  to 
recover  therein  tiie  contract  |)rice,  with 
interest.  (4)  That  if  the  iilalntiffn.  (m  or 
before  the  1st  day  of  .July.  IH.V..  deliVer.«l 
to  Douseman  &  Co.,  for  the  di-fendant,  u 
reaper  of  the  kind  ordered,  and  such  u 
one  as  the  contract  called  for.  the  title  to 
the  reaper  so  delivereil  vested  In  the  de- 
fendant, (.'p)  That,  whatever  may  be  the 
verdict  of  the  jury  in  this  action,  the  de- 
fendant, uiioii  the  iileadlnnH,  Is  entitled  to 
the  possession  of  tiie  rea|>er.  and  may  coll 
at  Douseman  &  Co.'s,  and  demand  and  re- 
<'eivp  the  same."  Verdict  and  juilKment 
for  the  defendant. 

Conger  &  Hawea.  for  appellants.  >Snilth 
&  Ordway,  for  respondent. 

DIXON.  C.  J.  In  cases  like  this,  we  fully 
concur  with  Judjre  nrouBon  in  snylng, 
that  "it  is  un  elementary  ittinciple  that 
ail  erroneous  derision  is  not  bad  law — it 
is  no  law  at  all  :"  and  coiihl  we  become 
satistu<l  that  our  last  decision  ( 1.!  Wis., 07 1 
was  in  this  unfortunate  preilicament,  or 
was  an  unauthorized  dictum,  we  should 
hasten  with  alacrity  to  retrace  our  steps. 
.Sulisei|ueiit  lnvesti;rations  have  only  coii- 
lirnied  the  views  which  we  there  took  of 
the  law. 

The  rights  and  liabllllleH  of  the  pnrtiea 
under  the  contract  were,  in  sulistnnce. 
these:  The  plaintiffs  were  bound  to  man- 
ufacture ami  deliver  the  niachine  In  the 
manner  specihed,  at  the  city  of  .Milwau- 
kee, on  or  before  the  llrst  itay  of  July. 
The  tlefendant  was  bound,  on  the  same 
day  (or  before,  if  notllled  of  Its  earlier  do- 
livorv,  uud  he  chose  to   do  no),  to  be  prcs- 


328 


GANSON  V.  MADIGAN. 


eiit  to  receive  it,  and  pay  the  fifty  dollars 
and  the  storage.  The  obliiratiou  of  the 
plaintiffs  to  manufacture  and  deliver,  and 
that  of  tile  defendant  to  be  present  and 
receive  and  pay,  were  nuitual  and  con- 
current. The  presence  of  Ijoth  parties,  by 
tlicniselves  or  agents,  at  the  time  and 
place  desif^nated,  was  neces.sarily  contem- 
plated, since  tlie  ol)li(iations  restins  upon 
them  respectively  could  not  otherwise  be 
discharged.  Tlie  plaintiffs,  if  tliey  bad 
manufactured  and  furnished  ready  for  de- 
livery by  their  agents  at  Milwauljee,  sadi 
a  machine  as  the  contract  called  for, 
would  have  so  far  performed  the  duty  im- 
posed upon  them  as  to  be  entitled  todam- 
ages  for  the  defendant's  violation  of  duty 
in  neglecting  to  be  pi-esent,  accept  and 
pay  the  sums  stipulated.  For  this  pur- 
pose it  was  not  necessary  for  them  to  set 
apart  the  machine  so  as  to  vest  the  title 
in  him  subject  to  their  lien  for  the  pur- 
chase money  and  charges.  Having  man- 
ufactured and  forwarded  the  machine 
upon  the  faith  of  I'is  pi-omise  to  receive 
and  pay  for  it,  it  would  be  most  unrea- 
sonable and  unjust  to  say  that  tliey 
should  not  have  compensation  for  any 
actual  loss  or  expense  which  they  had 
thus  incurred.  The  defendant,  by  his  fail- 
ure toappear  and  peri<)rm  the  contracCon 
his  part,  would  have  lieen  in  no  situation 
to  insist  upon  au  actual  ilelivery  or  sepa- 
ration of  the  machine,  jieliver.v  and  pay- 
ment were  concurrent  acts,  the  one  de- 
pendent on  the  performance  of  the  other, 
and  the  neglect  of  the  latter  effectually  ex- 
cused the  former.  It  would  have  been 
enough  to  have  enabled  the  plaintiffs  to 
recover  their  actual  loss  and  expenses,  if 
they  had  shown  that  they  were  ready  and 
willing  to  perform  the  contract  on  their 
part.  Chitty  on  Con.,  033.  As  stated  by 
Mr.  Parsons  (2  Parsons  on  (Vm.,  4S-I,) 
they  had  under  the  circumstances,  three 
courses  open  to  them;  to  consider  the  ma- 
chineas  tlieir  own  (which  they  ilid,  by  not 
setting  it  apart,  so  as  to  constitute  a  de- 
livery),  and  sue  for  the  dam  ages  occasioned 
by  the  non-acceptance;  or  to  consider  it 
as  the  defendant's  (which  they  might  have 
done,  by  separating  it  from  Iho  othei's 
so  ae  to  be  capable  of  identification),  and 
sell  it,  with  due  precaution,  to  satisfy 
their  lien  on  it  f(U-  the  piice,  and  then  sue 
and  recover  only  for  the  unpaid  balance 
of  the  price;  or  in  the  latter  case,  also,  to 
hold  it  subject  to  defendant's  call  or  or- 
der, and  then  recover  the  wludo  i)rice 
which  he  agreed  to  pay.  We  deim  these 
principles  to  be  sound  and  well  supported 
by  the  authorities,  and  are  willing  to 
stand  by  them.  The  rule  of  damages 
given  by  the  court  below  was  therefore 
correct,  and  the  judge  was  right  in  refus- 
ing the  instruction  asked  by  tne  appel- 
lants on  that  subject. 

The  case  is  clearly  distinguishable  from 
those  in  which  thecounsel  suppose  adiffer- 
ent  rule  was  establislied.  They  will  all  be 
found,  on  examination,  to  have  been  cases 
where  the  articles  purchased  or  manufac- 
tured were,  from  their  nature,  susceptible 
of  being  distinctly  known  and  identified, 
or  where  the.v  were  set  apart  by  the  ven- 
dors, so  that  tiie  vendees,  on  paying  the 
price,  could    reciive   and    dispose  of   them 


if  they  desired.  Such  was  the  case  of  the 
wood  work  of  the  wagon,  in  Crookshank 
V.  Burrell,  18  .Johns.,  r>S;  the  carriage,  in 
Mixer  V.  Howarth,21  Pick.,'20.i;  the  sulky, 
in  Bement  v.  Smith,  I.'}  \A  end.,  493;  and 
tlie  proHiiasory  note,  in  Des  Arts  v.  Leg- 
gett,  1(>  N.  Y.,  5S2.  As  was  decided  in  the 
last  case,  the  vendor,  chousing  tcj  go  for 
the  price,  becomes,  afler  a  valid  tender  of 
the  chattel  in  performance  of  the  con- 
tract,a  baileefor  the  vendee.  But  we  know 
of  no  principle  of  law  which  would  allow 
the  venflor  to  keep  the  goods  h&  his  own, 
and  at  the  same  time  come  upon  the  ven- 
dee for  the  price— compel  the  latter  to  pay 
for,  and  yet  not  get  the  property ;  whicli 
would  be  the  case  were  the  present  plain- 
tiffs to  be  permitted  to  recover  the  price 
irresjiective  of  tlie  aniount  of  datuages 
whit-h  the.y  had  sustained  in  consequence 
of  the  defendant's  nonacceptance.  The 
machine  here  was  brought  to  .Milwaukee 
in  pieces,  its  several  parts  separated  and 
packed  with  those  of  a  great  number  of 
other  machines  of  identical  form  and  pat- 
tern, so  that  thesamepart  of  one  machine 
was  equally  suited  to  every  other.  It  re- 
mained in  this  condition  until  after  the 
day  t1xe(i  for  its  delivery  and  acceptance. 
It  is  idle,  therefore,  to  talk  al>out  there 
having  been  such  a  delivery  as  would  have 
vested  the  title  in  the  defendant,  provided 
the  jury  had  found  that  the  machine  was 
such  as  the  contract  calle<l  for.  The  prop- 
ei'ty  in  all  the  machines  remained  in  the 
plaintiffs,  subject  to  their  absolute  domin- 
ion and  right  of  disposal.  NotI  ing  could 
have  changed  it  as  to  the  defendant, short 
of  a  separation  or  distinct  ascertain- 
niont,  by  mark  or  otherwise,  of  the  ma- 
chine intended  for  him,  so  that  he  could 
afterwards,  on  paying  the  ()rice,  have  ob- 
tained it  if  he  chose. 

If  thedefendant's  had  been  the  only  con- 
tract for  a  machine  to  be  delivered  in  Mil- 
waukee, and  his  the  only  machine  deliv- 
ered, or  if  it  had  been  unlike  all  tlie  otiiers, 
the  question  would  have  been  very  differ- 
ent. The  authorities  cited  by  counsel 
would  then  have  afforded  some  founda- 
tion for  their  positiim. 

And  here  we  may  correct  another  mis- 
take on  the  part  of  the  counsel.  They 
seem  to  suppose  that  the  delivery  of  sev- 
eral machines  in  Milwaukee,  in  whatever 
form,  so  that  one  could  have  been  ob- 
tained by  the  defendant  within  the  time 
jirescribed,  was  all  that  was  necessary 
under  the  contract  to  pass  the  title;  and 
that  this  court  so  decided  when  the  cause 
v\-as  here  for  the  first  time.  9  Wis.,  146. 
But  this  was  not  so.  The  delivery  there 
spoken  of  was  a  delivery  in  the  general 
sense  of  bringing  the  machine  to  Milwau- 
kee, in  pursuance  of  the  contract,  so  as  to 
entitle  the  plaintiffs  to  recover  damages 
for  the  defendant's  nonacceptance,  — not 
that  specific  delivery  made  necessary  by 
law,  to  transfer  title.  The  contract  of  the 
defendant  was  distinct  and  independent  of 
that  of  every  other  person,  and  a  compli- 
ance with  its  terms,  as  well  as  the  law, 
required  a  distinct  and  independent  deliv- 
ery, in  order  to  vest  the  title  in  him.  He 
never  agreed  to  receive  his  machine  in 
fragments,  commingled  with  those  of  the 
machines   of  a    hundred  other  persons,  in 


G ANSON  V.  MADIGAN. 


329 


Hiich  manner  thai  nutbiu;^  could  be  iden- 
tified. Tlio  way  in  wliicli  the  niacliines 
caiiitf  tc>  the  liaiidH  of  tlie  conHiKnecH,  wnH 
tlic  phiiiitirrH'  fault,  or  at  IcaHt,  not  tlie 
fault  of  the  defendant. 

Th(' word  "  team,"  as  UHed  in  the  con- 
tract, is  of  doubtful  slKnitication.  It  may 
mean  liorHew,  mulen  oroxen.and  two,  tour, 
Hix  or  even  more  of  either  kind  of  heuHtH. 
We  look  upon  tlie  contract  and  cannot 
Hay  what  it  is.  And  yet  we  know  very 
well  that  the  i)artie.s  had  some  definite 
purpose  in  nsiiiK  the  word.  'I'he  trouble 
\n  not  that  the  word  is  insensible,  and  lius 
no  settled  meaninR,  but  that  it  at  the 
same  time  admits  of  several  interpreta- 
tions, nccordinji;  to  the  subject  matter  in 
contemi)lation  at  the  time.  It  is  an  uncer- 
tainty arising  from  the  indelinite  and 
e(|uivocul  moaninK  of  tlie  word,  when  an 
iolerpretation  is  attempted  without  the 
aid  of  s'.irroundinK  circumHtanc(«.  It  ap- 
pears on  the  face  of  the  instrunu'ut.  and  is 
in  reality  a  patent  ambiguity.  The  tiues- 
ti(jn  is,  can  extrinsic  evidence  be  received 
to  explain  it?  We  think  it  can.  There  is 
undoubtedly  some  confusion  in  the  au- 
thorities upon  this  subject,  especlalli-  if  we 
look  to  the  earlier  cases;  but  the  latter 
decisions  seem  to  be  more  uniform.  As 
observed  by  Chancellor  Desaiissure,  in 
Duprce  v.  McDonald,  4  Des.,  L'O'J.  the  Kreat 
distinction  of  arabiKuitas  latens,  in  which 
parol  evidence  has  been  more  freelv  re- 
ceived, and  of  amblKUitas  patens,  in  which 
it  has  been  mure  cautiously  received,  has 
not  l)een  suflicient  to  >;uide  the  minds  of 
the  judges  with  unerriuK  correctness; 
some  of  the  later  cases  show  that  there  is 
a  middle  ground, furnishiiis  cireumstances 
of  extreme  dilliculty.  .lucl^e  Story  was 
of  opinion  (Feiscli  v.  Dickson,  1  Mason, 
11),  that  there  was  an  intermediate  class 
of  cases,  partakinfj;  of  the  nature  bolli  of 
patent  and  latent  ambiiruities,  and  com- 
prisiriK  tliose  instances  where  the  words 
are  equivocal,  but  yet  admitof  preeiseand 
delinite  application  by  resortinfr  to  the 
circumstances  under  which  the  instrument 
was  made,  in  which  parol  testimony  was 
adinissil)lo.  As  an  example,  be  put  the 
case  of  a  party  assijinins  his  freii;ht  in  a 
particular  ship  liy  contract  in  writinir: 
sayiuK  that  parol  evidence  of  the  circum- 
stances attiiidiuK  the  transaction  would 
be  admissible,  to  ascertain  whether  the 
word  "freiijht"  referred  to  the  jjoods  on 
board  of  theship.oran  interest  iiitheenrn- 
in^sof  the  ship.  Tills  distinction  seems  to 
be  fully  sustained  by  the  later  authori- 
ties, and  we  can  discover  no  objection  to 
It  on  principle.  Ueay  v.  lUchnrdson,  2  C, 
M.  &  H.,  4->2;  Hall  v.  Davis,  -.K  N.  II.,  nc,!); 
Emery  v.  Webster,  42  Maine,  204;  ISaldwiu 
V.  Carter,  17  Conn.,  201  ;  Drake  v.(iorte.  22 
Ala..  400;  Cowles  v.  Garrett,  30  Ala.,  :t4s; 
Waterman  v.  Johnson.  i:i  rick.,2(il;  Me- 
chanics' Hank  v.  Hank  of  Columbia,  5 
Wheat.,  ;!2fi;  .lenniiiKs  v.  .Sherwood,  8 
Conn.,  122;  1  Cireeul.  Kv.,  S5  2S(!.  2s7  and 
2S.S.  'J'lie  seneral  rul'*  is  well  stated  by 
the  supreme  court  of  New  Hampshire. 
In  Hall  V.  Davis,  as  follows:  ".\s  all 
writti'ii  Instruments  are  to  be  inter- 
preted accordinf.:  to  tlieir  subject  mat- 
ter, and  such  construction  niven  tliem  as 
will  carry  out    the   inteutiou  of    the   pai- 


ticH,  whenever   It   is  legally  possible  to  do 
so,  consistently    with    the  lauKUUKe  of  tho 
instrniiients   themselves,  parol   or   verlial 
testimony    may    be   rcsorteil    to,  to  ascer- 
tain the   nature   and    (|uallties  of  the  sub- 
ject  matter   of    those    iiistruuientM.  to   ex- 
plain   the  circunislanecs  surrounding  the 
riarties.  and    to   ex|)lain    the   instruiiientH 
tlicmselves  by    showiiiK    the   situation    of 
the  parties  in  all  their  rclatlcjus  to  persons 
unri    things    around    them.     Thus,    If    the 
lant^uaKe   of   the   instrument  is  applii  able 
to   several    persons,   to    several  parcels  of 
land,  to  several  species   of   goods,  to   sev- 
eral  UKinunienls,    boundaries   or   lines,  to 
several    writiaj{s,  or  the   terms  be    vague 
I  and  general,  or  have  divers    meanlniis.  In 
1  all   these  and  the  like  cases,  parid  evidence 
i  Is     admissilile    of     uay    extrinsic    drcuni- 
'  stances    tending    to  sliow  what  pePHon  or 
persons,  or    what    thinus,    were   Intended 
by  the  party,  or  to  ascertain  his    meaning 
j  in    any    other   respect;    and    this  without 
I  any  infringement  of  tiiegeneral  rule.uhicli 
j  only    excludes  parol  evi<lence  of  other  lan- 
guage, declaring   the   meaning  of  the  pur- 
tics,  than  thai  which    is  contained  In    the 
instrunieiit  itself." 

If  evidence  of  surrounding  facts  and   cir- 
cumstances   is    admitted     to    explain  the 
sense  in  which  the  words    were   used,  cer- 
:  tainly  proof    of    tlie    declarations   of   the 
I  parties,  made   at    the   time  of  their  iinder- 
!  standing   of   them,  ought  not    to    be    ex- 
cluded.    And    BO    it    was  held  In  several  of 
I  the  cases  above   cited.     2  C,  M.  &  I!..  422. 
42  Maine,  204:  ]:!  E'ick.,  2G1.     Such  dcclnrn- 
tlons,  it  satisfactorily    established,  would 
seem    to   be  stronger  and  more  conclusive 
i  evidence   of    the  intention    of   the   parties 
than    i)roof  of    facts    and    circumstances, 
since  tliej'  come   miiro  nearly  to  direr-t  evi- 
dence than  .•iiiy  to  be  obtained,  whilst  the 
otlii'r  is  but  circumstantial. 

And  though  in  general  the  construction 
of  a  written  instrum'.'nt  is  a  matter  of 
law  for  the  court— the  meaning  to  be  col- 
lected from  the  i;istrumcnt  itself;  yet, 
',  where  tlie  meaning  is  to  be  judged  of  by 
extrinsic  evidence,  the  construction  Is 
j  usually  n  question  for  llie  jury.  .lennings 
I  v.  Sherwood,  and  other  cases  above.  The 
circuit  judge  was  therefore  right  in  receiv- 
ing parol  evidence,  to  ascertain  the  sense 
in  wliich  the  word  was  used  by  the  par- 
1  ties,  and  in  subuiittiiig  that  question  to 
1  the  derision  of  the  jury. 

Hut    he    was  clearly  wrong  In  receiving 

I  evidence   of   tlie  slatcments   of  the  plain - 

i  tiffs' agent    to    the    witness   Ciinn.  at    the 

time   of   making  the  contract    with    hlin. 

iTIie  occasions  were clifferent— the  tworoii- 

!  tracts   entirely   dlsci'iinectpd.  and  though 

bothconcerned  a  meilicineof  ihe  samepat- 

tern  mid  ninnutaetnre.  yet  what   was  said 

;  In  the  one  case    was    not  a    part    of   the 

I  transaction    in  the  other.     It  was  no  port 

I  of  the  res    gestiP.     It    the   agent   Chase,  In 

negotiating    with  Guna,  had  made  an  nd- 

inission    of  his    representations     to     the 

'  plaintiff,  evidence  of  such  nilinission  could 

not  have  been  received.     Mil.  an.l  Miss.  I!. 

K.  Co.  V.  riiiney,    10    Wis.,  :iss.     It    would 

liegtiingmucli  loofar,  were  wetohohl  that 

it  «  as  [iroper  to  give  the  jury  the  agent's 

stati'Mii'iit    to    Gunn.  as   evidence    lendiuR 

I  to  prove    that    a  similar    stnteiueiit  was 


330 


GANSON  V.  MADIGAN. 


uiQde  to  the  plaintiff  If  it  has  any  such 
tenilency,  it  is  so  fLMiiote  that  the  law 
cannot  lay  hold  of  and  apply  it. 

The  question  tlien  comes  up,  must  the 
judtfuient,  for  this  reason,  be  reversed'.' 
The  defendant's  counsel  insist  not— that 
the  evidence  l)efore  the  jury  was  sufficient 
without  tliis,  and  it  it  had  been  rejected, 
the  verdict  must  liave  been  the  same. 
We  are  inclined  to  talie  tlie  same  view. 
The  defendant's  testimony  was  clear  and 
positive  as  to  the  liind  of  team — tliat  tlie 
asent  said  "one  span  of  horses"  would 
work  the  macliine  up  to  tlie  warranty. 
In  this  he  was  not  contradicted,  but 
rather  corroborated  by  the  asent,  who 
was  himself  upon  the  stand.  We  woulil 
naturally  expect,  if  the  fact  had  been 
otherwise,  the  agent  would  have  said  so. 
On  the  other  hand,  he  testifies  very  frank- 
ly that  the  defendant  said  he  had  but  one 
team;  and  that  he  told  him  one  good 
team    would    work  the  machine.     The  ad- 


mission of  the  improper  evidence  could 
not,  therefore,  have  affected  tlie  findinj;  of 
the  jury  upon  this  point;  and  conse<iuent- 
ly  the  plaintiffs  were  not  prejudiced  by  it. 
We  can  hardly  believe  that  the  arjiu- 
metit  of  tlie  plaintiffs'  counsel  upon  the 
construction  of  the  warranty,  that  it  re- 
j  ferred  to  the  capacity  of  the  machine 
:  without  regard  to  the  kind  of  team  em- 
I  ployed,  and  was  satisfied, if,  under  any  cir- 
cumstances, and  with  any  numiier  of 
I  horses,  it  could  be  made  to  perform  as 
I  alleged,  was  urged  with  any  real  hope  of 
I  success.  Such  a  construction  would  be 
I  directly  opposed  to  the  manifest  intention 
of  the  parties. 

The  jury,  upon  proper  evidence  and  un- 
der proper  instructions,  having  found 
that  the  machine  delivered  at  Milwaukee 
was  not  such  as  the  contract  called  for, 
the  judgment  upon  their  verdict  must  be 
affirmed. 
Ordered  accordingly. 


GARDNER  v.  LANE. 


333 


GARDNER  V.  LANE. 
(9  Allen,  493.) 


Supreme  Judicial  Court  of  Massachusetts.    Es- 
sex.   January  Term,  1S65. 

I{e|ilevin.  The  writ  oommnmled  the 
officer  to  replevy  the  tjoods  nii'l  chattels 
folio winj;,  to  wit:  "One  huiidreil  and 
thirty-live  barrels  of  No.  1  mackerel,  forty- 
Ki.\  barrels  of  No.  8  niackerel,  and  forty- 
einht  barrels  filled  with  salt,  together 
with  the  salt  contained  therein."  The 
olhcer's  return  showed  that  hetooU  thirty- 
twobarrels  and  fifteen  half  barcels  of  No. 
1  mackerel,  forty-nine  barrels  and  twohalf 
barrels  of  No.  8  niackerel,  and  forty-ei;;ht 
barrels  of  salt.  The  answer  avei-red  that 
the  defendant  had  the  iiroperty  in  his  pos- 
session as  attaching  ollicer  under  n  writ  I 
of  uttaclinienl  against  (ieor;;e  V.  Wonson  [ 
and  others,  to  whom  the  same  belony,e<l.  i 
Jt  appeared  that  in  November,  IM!'.', 
(jteortce  K.  Wonson  &  Brothers  owed  the 
plaintiff  $l,.'!:W.Or>,  and  bargained  to  him 
in  payment  one  hnndred  ami  thirty-five 
barrels  of  No.  1  niackerel,  at  ten  doUai-s  a 
barrel,  amounting;,  with  inspector's  fees,  i 
to  $I,:W7.1.'.'),  anil  uave  liim  a  bill  of  sale 
tliereof,  wherenpon  he  save  them  n  re- 1 
lease,  and  paid  them  the  difference,  fuS..'i',); 
that  on  the  5th  of  January,  ISGIi,  he  called 
ui>on  them  for  the  mackerel,  and  Gecr^^e  | 
F.  Wonson  went  with  him  to  a  wharf,  ; 
where  a  lar^e  quantity  was  stored,  and 
counted  outeishty-fivebarrelsof  mackerel, 
which  both  supiiosed  to  be  .Vo.  1,  which 
were  delivered  to  tin-  plaintiff  and  left 
there;  that  they  then  went  to  a  store  i 
where  Wonson  counted  off  two  rows  of 
barrels,  containing;,  as  he  siiid,  fifty  biir- 
rels,  marked  the  barrel  at  the  end  of  each  [ 
row,  and  nuve  plaintiff  a  st.ir.-itre  receipt  j 
In  the  name  of  (ieorse  F. Wonson  &  Hroth- ' 
ers,  and,  before  the  same  were  removed,  ' 
(lie  .ittachment  by  the  defendant  was 
made.  The  two  rows  in  the  store  in  fact  j 
contained  only  forty-ei;;lit  barrels,  and 
the  barrels  containeil  s;ilt.  A  portion  of 
the  (piantity  in  the  shed  was  No.  1  mack- 
erel, and  a  portion  was  No.:!.  The  dt- 
fendant  iistioduced  evidence  that  two  half 
barrels  would  exceed  one  whole  barrel  in 
price  by  lifty-four  cents,  for  inspector's 
fees;  and  the  iilaintiff  introduced  evidence 
that,  when  the  replevin  suit  was  served, 
the  defendant  ajrreed  that  two  half  bar- 
rels should  be  considered  as  eciui^nlent  to 
one  whole  one.  ami  that  the  officer  serv- 
ing the  replevi:!  acted  under  such  agree- 
ment. The  defendant  then  asked  thecourt 
to  rule  inasmuch  as  the  eiy;hteen  halt  bar- 
rels of  mackerel  replevied  by  tliedefeiiilan t 
were  not  embraced  in  the  bill  of  sale  nor 
in  tile  storaj»e  receipt,  nor  was  there  any 
evidence  introduee<l  that  any  lialf  barrels 
were  ever  sold  or  attemiited  to  be  deliv- 
ered to  the  plaintiff,  the  plaintiff  had  es- 
tnblislied  no  title  or  rl;iht  of  possession  to 
the  half  barrels;  and  that  inasmnch  as 
there  were  rejilevied  l)y  the  plaintiff's  writ 
forty-five  barrels  of  No.  :!  niackerel  and 
forty-eishr  barrels  of  salt,  and  inasmuch 
as  the  bill  of  sale  and  the  stiir.'ijie  receipt 
were  of  No.  1  mackerel,  and  if  theattempt- 
ed  delivery  was  to  consist  of  No.  I  mack- 
erel Didy,  and   by  mistake  in  such  delivery 


there  were  No.  3  mackerel  and  dnlt,  the 
bill  of  sale,  receipt,  and  delivery  did  not 
convey  to  the  plaintiff  the  No.  :i  mackerel 
and  the  salt;  and  that,  the  writ  not  di- 
recting the  officer  to  reidevy  any  half  bar- 
rels, the  officer  servin;;  It  would  not  be  en- 
titled to  replevy  such  half  barrels.  The 
jufltte  instructed  the  jury  that  If  plaintirr 
had  a  bill  of  sale  of  one  humlred  and  thir- 
ty-five barrels  of  No.  1  mackerel,  anil  if 
substantially  that  nuniber  of  barrels  was 
in  fact  delivered  to  him,  the  bill  of  sale 
■would  amount  to  a  warranty  that  the 
barrels  so  delivered  contained  No.  I  luack- 
crel.  If  it  afterwards  proved  on  examina- 
tion that  soiiio  of  the  merchandise  delivered 
was  of  inferior  quality  and  a  lower  brand, 
and  known  as  No.  :i.  and  alxo  that  a  por- 
tion of  the  barrels  delivered  contained  only 
salt,  the  |)laintiff  would  have  the  rli;lit  to 
rescind  the  sale  in  |iart,  and  return  the 
articles  which  did  not  answer  the  descrip- 
tion ;  or.  if  he  saw  fit  to  keep  what  was  so 
delivered,  and  to  rely  upon  his  warranty 
for  recoveriai;;  back  whatever  he  had  over- 
paid beyond  a  fair  value,  he  could  do  so, 
and  that  a  third  person,  not  a  party  t<» 
the  contract,  could  not  impeach  the  plain- 
tiff's title  under  the  bill  of  sale;  and  that 
it  was  acreed  between  the  plaintiff  ond 
the  defendant  that  In  the  service  of  the  re- 
plevin two  half  liarrels  should  be  tr"-nted 
I  and  considered  as  one  whole  barrel,  and 
;  that  the  term  "barrel"  sliould  be  taken  as 
a  measure  of  quantity, and  not  as  descrili- 
ini;  the  iiioile  in  which  the  iiro|)erty  was 
I)Ut  ui),  the  plaintiff  could  replevy  the  half 
barrels,  provided  they  were  in  fact  Includ- 
j  ed  amon^r  the  jioods  which  were  delivered 
to  him.  The  jury  returned  n  verdict  for 
the  plaintiff,  and  the  defendant  alleged 
I  exce|)tions. 

i     J.  C.  Perkins,  for  plaintiff.    J.  G.  Abliotl 
;  and   L.  Child,  fur  defendant. 

j  BIGEI.OW,  ('.  .1.  1.  The  evidence  of- 
fered by  I  he  ilefeniiant  and  re]  rted  was 
clearly  iiii(ii!;peterit.  This  Is  not  an  ac- 
tion in  which  an  a.-sij;iiee  in  insolvency  Is 
seeking  t"  recover  property  belon>;inK  to 
the  insolvent  debtor  for  the  purpose  of 
distribution  amouK  all  the  creditors.  It 
is  controversy  l>etween  tw<i  creditors, 
each  of  them  striviiiir  to  hold  property  of 
their  debtor  ntiaiiist  the  other  for  the 
purpose  of  approiiriatiuvr  it  in  |)ayment 
of  their  pre-exlstinn  debts,  by  way  of 
preference  over  other  creditors.  Neither 
of  them  can  claim  any  rights  in  this  ac- 
tion under  the  proceedings  in  Insolvency. 
The  provisions  of  the  Insolvent  laws  for 
the  avoidance  of  sales,  transfers  and  nt- 
tachmeiits,  which  may  oi>erate  as  a  pref- 
erence, are  desl;;iied  exclusively  for  the 
benefit  of  those  who  come  in  under  the 
assiitnee  or  otherwise  to  obtain  an  equal 
share  of  the  property  of  the  insolvent  In 
the  mode  provided  by  law:  and  these 
provisions  cannot  be  invoked  In  aid  of  a 
person  who  stands  only  In  the  position  of 
a  creditor,  endeavorinc  to  sivure  hl« 
whole  debt,  either  by  means  of  a  sale  or 
by  an  attachment,  rennlman  v.  Cole,  8 
\iet.  VM\,  .'lOU.  Hurt  v.  I'erklus,  '.1  Cray. 
:!l'i».  The  rights  of  creditors  under  the  In- 
solvent  proreedln>;s   can  In  nti  way  be  nf- 


334 


GARDNEK  v.  LANE. 


feeted  by  tlie  result  of  the  issue  between 
the  parties  to  this  suit.  If  the  property 
ill  controversy  can  he  rightfully  claimed 
by  the  assignee  in  insolvency  for  the  ben- 
efit of  creditors,  liis  title  to  it  can  be  as- 
serted with  like  effect,  whether  the  plain- 
tiff or  the  defendant  succeeJ.'j  in  establish- 
ing a  right  of  possession  and  property  In 
this  action. 

2.  Other  and  more  interesting  questions 
were  raised  at  the  trial,  and  remain  to  l)e 
considered.  The  first  and  most  impor- 
tant one  is,  whether  on  the  evidence  ad- 
duced at  the  trial  any  title  passed  to  the 
plaintiff,  under  the  contract  of  sale  set  up 
by  him,  to  that  part  of  the  property  re- 
|)levied  which  is  described  in  the  writ  "as 
forty-six  liarrels  of  No.  3  mackerel,  and 
forty-eight  barrels  filled  with  salt."  The 
facts  in  regard  to  the  articles  are  few  and 
simple.  The  plaintiff  entered  into  a  eon- 
tract  of  sale  with  the  original  owners  of 
the  property,  under  whom  both  parties 
claim, for  one  hundred  and  thirty-five  bar- 
rels of  No.  1  mackerel,  at  ten  dollars  per 
barrel,  amounting  with  inspector's  fees  to 
$l,yi)7.2o, for  which  payment  was  made  by 
the  plaintiff  by  releasing  claims  against  the 
vendors  for  about  thirteen  hundred  and 
fift.v  dollars,  and  by  money  to  the  amount 
of  about  fifty-five  dollars  This  transac- 
tion tuok  place  on  the  2()th  day  of  Novem- 
ber, ISO-'.  No  delivery,  however,  of  the 
mackerel  included  in  the  contract  of  sale 
then  took  place,  but  subseijuently,  five  or 
six  weeks  afterwards, a  delivery  was  made 
of  certain  barrels  supposeil  to  contain  No. 
1  mackerel,  in  pursuance  ot  the  contract ; 
of  the  barrels  so  delivered,  a  large  num- 
ber did  not  contain  No.  1  mackerel,  hut  in- 
stead thereof,  forty-five  barrels  contained 
No.  3  mackerel,  and  forty-eight  contained 
salt  only,  and  these  were  delivered  by 
miotake  as  a  part  of  the  one  hundred  and 
thirty-five  barrels  of  No.  1  mackerel  which 
were  agreed  to  be  sold  to  the  plaintiff. 

On  these  facts  it  seems  to  us  to  be  in- 
consistent with  elementary  principles  to 
hold  that  any  property  in  the  barrels  of 
No.  3  mackerel  and  of  salt  t)assed  to  the 
plaintiff.  To  constitute  a  valid  sale  of 
goods,  wares  and  merchandise,  complete 
and  consummate,  so  as  to  p.sss  the  prop, 
erty  to  them,  there  must  be  an  agreement 
or  contract  of  sale  by  which  the  vendor 
agrees  that  the  articles  shall  pass  to  and 
become  theproperty  of  the  vendee.  With- 
out such  contract  or  agreement,  there  can 
be  no  sale.  Delivery  is  not  always  essen- 
tial. As  between  the  vendor  and  vendee 
of  specific  chattels,  in  esse,  the  title  will 
pass  when  the  contract  of  sale  is  complete 
without  delivery.  But  the  minds  of  the 
parties  must  meet,  and  there  must  he  a 
mutual  assent  to  the  transfer  of  certain 
specified  projicrty,  before  any  change  of 
title  to  it  can  l)e  effected.  Until  this  takes 
place,  that  is,  until  there  is  an  agreement 
to  sell  certain  specific,  identical  goods, 
there  can  be  no  actual  sale  or  change  of 
ownership.  So  strictly  is  this  held,  that 
where  goods,  part  of  an  entire  bulk  or 
mass,  are  agreed  to  be  sold,  the  contract 
of  sale  is  deemed  to  be  incomplete  and  no 
propert.v  passes,  if  such  part  has  not  been 
separated  or  ilesignated  in  such  man- 
ner that  it  may  be  distinguished   from  the 


mass  or  hulk  with  which  It  is  mingled. 
Until  the  parties  are  agreed  as  to  the 
specific,  identical  goods,  the  contract  can 
be  no  more  than  an  agreement  to  supply 
goods  of  a  certain  kind,  or  answering  a 
particular  descri[itiou.  The  reason  of 
this  is  obvious.  There  can  he  no  transfer 
of  propei'ty  until  the  parties  have  ascer- 
tained and  agreed  upon  the  articles  sold. 
Before  they  are  designated  and  set  apart 
in  some  form,  there  is  nothing  to  which 
the  contract  of  sale  can  attach,  or  on 
which  it  can  operate.  Chit.  (.'on.  (lOth 
Amer.  Ed.)  ;;.  -398.  Aldridge  v.  Johnson, 
7  El.  &  Bl.  fsS-'i.  Scudder  v.  Worcester,  11 
Cusli.  573.  It  necessarily  follows  from 
these  familiar  principles,  that  where  par- 
ties to  a  contract  of  sale  agree  to  sell  and 
Iturchase  a  certain  kind  or  description  of 
property  not  yetascertained, distinguished 
or  set  apart,  and  subsequently  a  delivery 
is  made  by  mistake  of  articles  differing  in 
tlieir  nature  or  quality  from  those  agreed 
to  he  sold,  no  title  passes  by  such  delivery. 
They  are  not  included  within  the  contract 
of  sale;  the  vendor  has  not  agreed  to  sell 
nor  the  vendee  to  purchase  them  ;  the  sub- 
ject matter  of  the  contract  has  been  mis- 
taken, and  neither  party  can  beheld  to  an 
execution  of  the  contract  to  which  he  has 
not  given  his  assent.  It  is  a  case  where, 
through  mutual  misapprehension,  the  con- 
tract of  sale  is  incomplete.  Delivery,  of 
itself,  can  pass  no  title;  it  can  he  effective 
and  operative  only  when  made  as  inci- 
dental to  and  in  pursuance  of  a  previous 
contract  of  sale.  Such  a  caseseems  clearly 
to  fall  within  that  class  in  wliich,  through 
mistake,  a  contract  which  the  parties  in- 
tended to  make  fails  of  effect ;  as  where  in 
a  negcUiation  for  a  sale  of  propert.v,  the 
seller  has  reference  to  one  article  and  the 
buyer  to  another,  or  where  the  parties 
supposed  the  property  to  be  in  exi-ftence 
when  in  fact  It  had  been  destroyed.  In 
such  cases  the  contract  is  ineffectual,  l)e- 
cause  the  parties  did  not  in  fact  agree  as 
to  the  suliject  matter,  or  because  it  had 
no  existence.  Kice  v.  Dwight  Manuf.  Co., 
2  (!ush..s6.  So  in  the  case  at  bar.  Tlie  c<jn- 
tract  of  sale  did  not  pass  the  property,  as 
against  attaching  creditors,  because  there 
was  no  delivery  to  the  vendee  of  that 
which  constituted  the  subject  ma ttcr  of 
the  contract;  tne  flelivery  of  different  ar- 
ticles from  those  embraced  in  the  contract 
is  inoperative,  for  the  reason  that  there 
is  no  agreement  for  their  purchase  an<l 
sale.  And  this  is  the  precise  distinction 
which  marks  the  line  between  the  case  at 
bar  and  those  cited  by  the  learned  counsel 
for  the  plaintiff.  In  all  of  the  latter,  the 
particular  articles  which  formed  the  sub- 
ject of  the  saleand  delivery  were  mutually 
agreed  upon  ;  there  was  no  mistake  or 
misaijprehensiou  concerning  them ;  the 
same  goods  which  the  vendor  agreed  to 
sell  and  the  vendee  to  buy,  were  deliv- 
ered. The  mistake  was  only  as  to  the 
quality  of  the  article;  it  was  the  same 
identical  thing  in  specie  as  that  respect- 
ing which  the  i)arties  had  negotiated.  Al- 
though in  such  cases  there  can  be  no 
doubt  of  the  right  of  the  vendee  to  rescind 
the  sale  and  return  the  property,  by  rea- 
son of  a  breach  of  warranty  or  fraud, 
i  there  is  as  little   doubt   that   the    title   to 


GARDNER  v.  LANE. 


33.', 


the  property  passes,  subject  only  to  such 
(JlHnlfiriiiiiiice  by  tlie  vendee.  The  ermr 
lit  the  trial  ciinwiHted  in  lu.siii^  Hi>;ht  of  th«! 
diHtiriction  between  cusch  of  this  chHruc- 
ter  jiiid  the  one  at  bar;  between  an  asree- 
lucnt  to  Kell  and  deliver  a  Hpecifii'd  article, 
coneeriiind  the  quality  of  whicli  the  par- 
ties were  deceived  or  niiHtaken,  and  an 
aKreeiui'ut  to  sell  one  article  and  a  deliv- 
ery by  iniHtaUe  of  a  wholly  different  ar- 
ticle, which  did  not  form  the  Mul)iect  mat- 
ter of  the  Hjjreenient.  In  the  former  the 
title  paHses  at  the  election  of  the  vendee; 
ill  the  latter  it  does  not.  ThiH  view  of 
the  iirinciples  of  law  applicalile  to  the 
factH  developed  at  the  trial  shows  very 
I'lcarly  that  the  second  hiHtruction  asked 
for  by  the  defendant  wnH  in  Hubstunce 
correct,  and  hIiouIiI  have  been  jiiven  to 
the  jury,  as  the  riilins  by  whicli  they  were 
to  be  governed  in  considerins  and  apply- 
inK  the  testimony. 

3.  It  is  somewhat  difficult  to  under- 
stand the  precise  posture  ol  the  case  at 
the  trial,  on  rhe  point  raised  in  the  third 
lirayer  for  instruction  submitted  Ity  the 
defendant.  We  are  l)y  no  means  sure  that 
the  point  is  open  on  the  pleadiiiRs;  but 
assumiuK  it  to  be  so,  we  do  not  think  it 
tenable.  It  is  certainly  true  as  any  ab- 
stract proposition,  that  an  officer  in  serv- 
ina  a  writ  of  replevin  can  take  only  such 
property  as  properly  comes  within  the 
terms  of  tlie  description  contained  in  the 
writ.  But  it  is  an  error  to  suppose  that 
the  term  "barrels"  necessarily  imiiorts  a 
definite  and  precisedescription  of  a  partic- 
ular article  or  thint;.  It  may  aiid  often  is 
used  to  desiRnate  a  certain  quantity,  ami 
not  the  vessel  or  cask  in  whicli  an  article 
is  contained.  There  is  nothinfj  on  the 
face  of  the  writ  to  show  tliat  it  was  used 
in  the  latter  sense;  on  the  contrary,  the 
evidence  tended  very  clearly  to  show,  and 
the  jury  have  found  under  the  instructions 
of  the  c<>urt,  that  the  term  "barrel"  was 
not  intended  as  a  precise  and  deHiiito  de- 
ecriptiua  of  the  specific  articles  wbiuL  the 


sheriff  was  rominanded  to  replevy,  but 
as  a  designation  of  the  (|uanlity  of  a  par- 
ticular kind  or  quality  of  ina'-kerel  which 
he  was  to  take,  irrespective  r)f  the  mode 
in  which  it  was  packed,  or  the  particular 
vessels  or  casks  in  which  It  was  con- 
tained. Nor  does  the  case  stop  here.  It 
appears  that  the  defendnnt  so  understood 
the  description  in  the  writ,  and  assented 
that  it  should  be  served  by  takiiiKasuf- 
licient  number  of  half  barrels  to  make  up 
the  quantity  which  the  sherifl  was  re- 
quired to  replevy.  After  such  assent  the 
ilefen<l,-uit  cannot  be  permitted  to  say 
that  the  description  in  the  writ  was  im- 
perfect or  insutlicieiit  lo  warrant  the  serv- 
ice of  the  writ.  The  plaintiff  havlii):  acted 
on  the  streiiKlh  of  the  assent  of  the  de- 
fendant, and  incurred  the  expense  of  com- 
pleting tlie  service  and  prnsecutln^  the 
suit  for  the  iiurpose  of  lltiifiitiii);  the  title 
to  the  property  which  was  actually  reple- 
vied, it  would  be  unjust  and  unreasonable 
to  allow  the  defen<lant  now  to  defeat  the 
rlKht  of  the  plaintiff  to  holil  a  i;art  of  the 
property  on  the  }!;round  of  any  defect  or 
ambiiiuity  in  the  description  of  the  prop- 
erty ill  the  writ. 

4.  The  only  remaJuiiiK  point  of  exception 
arises  on  the  first  pray?r  for  instruction. 
It  seems  to  us  the  verdict  rendered  under 
the  instructions  given  leaves  no  question 
open  to  the  defendant  on  this  poiii*  of  the 
case.  The  jury  must  have  found  that  the 
lialf  barrels  of  mackerel  were  included  in 
the  sale  and  delivery.  .X  mere  mistake  in 
the  bill  of  sale,  or  the  desciiption  of  the 
mode  in  which  the  property  was  packed, 
would  not  prevent  the  property  passine 
by  the  delivery,  if  It  was  of  the  same  kind 
and  quality  as  that  which  the  parties  in- 
tended to  include  in  their  aKi'eeiiient. 

The  result  is,  that  the  case  must  go  to  a 
new  trial,  in  consequence  of  misdirection 
on  the  point  raised  In  the  second  prayer 
for  instructions  submitted  by  the  defend- 
ant. 

Exceptions  sustained. 


GILES  V.  SIMONDS. 


837 


GILES  V.  SIMONDS. 

(15  Gray,  441.) 

Supreme    Judicial     Court    of    Massachusetts. 
Boston.    June,  18C0. 

Tort  [i)r  breakiiiK  ful  iiiterinp:  defend- 
ant's  close,  and  cutting;  trees  tlicrenn. 
Uefenduiit  alleired  a  verbal  wale  of  the 
trees  to  his  father,  and  a  payment  of  the 
price,  and  that,  after  his  lather  had  ont 
Koine  of  the  trees,  u  transfer  of  all  his  in- 
terest, with  pluiutiff's  consent,  to  defend- 
ant, rialntiff  re(iue8ted  «  charue  that  an 
oral  license  to  so  on  his  lands  and  cut  the 
trees  was  revocable,  except  so  far  as  it 
liafl  been  acted  on,  and  that  the  license 
after  revocation  was  no  defense,  although 
the  price  of  the  trees  hud  been  paid.  The 
judKe  refused  the  instruction,  and  the  jury 
found  for  defendant. 

('.  Allen  and  S.  T.  Field,  for  plaintiff.  A. 
Brainard.  for  defendant. 

HICKLOW.  J.  If  the  plaintiff  had  a 
rijrlit  to  revoke  the  license  to  enter  upon 
his  land,  under  which  the  defendant  seeks 
to  justif.v  the  acts  of  trespass  alley,ed  in 
the  (h'claration,  it  i^s  entirely  clear  that  the 
veriiict  rendered  in  favor  of  the  defendant 
cannot  stand.  The  decision  of  the  case 
turns  therefore  on  the  question  wliether 
an  owner  of  land,  who  has  entered  into  a 
verbal  contract  for  the  sale  of  standing 
wood  or  tinU)er  to  be  cut  and  served  from 
the  freehold  by  the  vendee,  can  at  his 
pleasure  revoke  the  license  which  he  there- 
by itives  to  the  ()urchaser  to  enter  on  his 
land  and  cut  and  carry  away  the  wood  or 
timber  included  in  the  contract.  That 
such  a  contract  is  not  invalid  as  passing 
an  interest  in  the  l;ind  is  too  well  settled 
to  admit  of  doubt.  It  is  only  an  e.xecn- 
tory  I'ontract  of  sale,  to  be  construed  as 
conveying  an  interest  in  the  trees  wJicn 
they  shall  he  severed  from  the  freehold  and 
shall  becotneconverted  into  jjersonal  pro];- 
erty.  Nordoes  the  permission  to  enter  on 
the  land,  which  such  a  contract  expressly 
or  by  implication  confers  on  the  ven<lee, 
operate  to  create  or  vest  in  him  any  es- 
tate or  iiiterer,t  in  the  pteniises.  It  is  oiUy 
a  license  or  authority  to  do  certain  acts 
on  the  land,  which,  but  for  such  license  or 
authority,  would  be  acts  of  trespass.  If 
it  were  otlierwise,lf  under  such  a  contract 
a  ritrht  were  conferred  on  the  vendee  to 
enter  on  the  land  and  then  to  exercise  a 
risht  or  privilege  at  his  own  pleasure,  free 
from  the  control  of  the  owner  of  the  land, 
during  the  continuance  of  the  contract,  it 
would  clearly  confer  on  the  vendee  a  rlKlit 
or  interest  in  the  premises,  which  would 
contravene  the  statute  of  frauds.  l{ev. 
Sts.  c.  74,  g  1.  There  can  he  no  doubt  tli.-it  a 
valid  license  toenter  on  land  may  be  jjiven 
by  parol.  I'.ut  this  rule  rests  on  the  dis- 
tinction that  a  license  is  only  an  author- 
ity to  do  an  act  or  series  of  acts  on  the 
land  of  another,  and  passes  no  estate  or 
interest  theri'in. 

'I'lie  nature  uniJ  extent  of  the  rijiht  or 
authority  conferred  by  a  license,  and  how 
far  it  is  within  the  power  ot  the  licenser 
to  modify  or  revoke  it,  hnveuiven  rise  to 
much  discussion  and  many  nice  and  Hul>tle 
distinctions  in  the  books,  as  well  as  con- 
L.\W  SAI.F> — 22 


flictinK  decisionB  in  thecourlR  ofconiinon 
luw.  Certain  princliiles,  however,  seem 
now  to  be  well  settled.  If  the  owner  of 
land  sells  chattels  or  other  personal  pro|t- 
erty  situated  on  his  land,  the  vendne  there- 
by obtains  an  implleil  license  to  enter  on 
the  premises,  anil  take  possession  of  and 
remove  the  |)roperty.  In  such  case  the 
license  is  coupled  with  and  supported  by 
a  valid  interest  or  title  in  the  property 
sold,  and  cannot  he  revoked.  Wooil  v. 
Manley,  II  Ad.  &  El.  :U.  Heath  v.  Han- 
ilall,  4  Cush.  It).').  So,  too,  If  the  owner  of 
chattels  or  other  personal  proi)ertv.  by 
virtue  of  a  contract  with  or  the  permis- 
sion of  the  owner  of  land,  places  his  prop- 
erty on  the  lanil,  the  license  to  entir  upon 
it  for  the  purpose  of  tukin};  and  removing 
the  property  Is  irrevocable.  Patrick  v. 
C<dPrick,8  .M.  &  \V.  4s3.  Itussell  v.  Kich- 
ards.  1  Fairf.  4L1I,  and  2  Fairt.  .t?!.  .Smith 
V.  Benson,  1  Hill  (S.  Y.)  17(i.  The  rintit  of 
property  in  the  chattels  draws  aftiT  it  the 
liKht  of  possession  :  the  lieeiiHe  tDenter  on 
land  to  obtain  possession  of  them  i.-<  subsid- 
iary to  this  ritfht  of  property,  which  can- 
not be  enjoyed  if  the  license  lie  withdrawD 
or  terminated.  This  ri^ht  in  the  chattels 
is  not  derived  from  the  license,  but  existH 
in  the  owner  by  virtue  of  a  iMstinct  and 
separate  title,  the  validity  of  which  in  no 
W!iy  depeiids  on  any  rijjht  or  interest  in 
the  laud.  Hut  with  the  assent  of  tlie 
owner  of  the  land  the  property  has  been 
placed  in  a  situation  where  it  cannot  be 
used  or  enjoyed  except  by  a  license  toenter 
upon  his  land.  The  continuance  of  thlH 
license  is  therefore  essential  to  the  enjoy- 
ment of  tlie  ri^lit.  It  would  he  a  manifest 
breai'h  of  good  faith  to  pi'rmit  such  n 
license  to  be  revoked.  No  man  shoul<l  In- 
permitted  to  keep  the  property  of  others 
by  inilucing  tliem  to  place  it  ui)on  his 
land,  and  then  denying  them  the  right  to 
enter  to  regain  its  possession.  A  party  is 
therefore  not  permltteil  to  withdraw  his 
consent,  by  settini;  up  his  title  to  the  land, 
after  it  lias  been  acted  on  by  others,  and 
when  their  rights  will  be  impaired  or  lost 
by  its  withdrawal.  In  like  manner  ami 
for  similar  reasons,  a  license  li>  enter  on 
land  for  the  r>urpo.se  of  removing  trees  or 
ti:;:l)er  therefrom,  which  have  bi-en  felled 
in  pursuance  of  a  contract  of  sale,  cannot 
be  recalled.  So  far  as  it  has  been  execut- 
ed, the  license  is  irrevocable.  I!y  virtue  of 
the  contract,  and  with  the  express  or  im- 
plied consent  of  the  owner  of  the  soil,  tlie 
vendee  lins  been  induced  to  expend  his 
money  and  services.  The  trees,  so  far  an 
they  have  been  sevi  red  from  the  freetiold. 
have  become  converted  Into  personal 
prt)perty,  and  vested  in  the  venilee.  A 
revocation  of  the  license  would,  to  the  ex- 
tent to  which  it  had  been  exifiiteil.  oper- 
ate us  a  fraud  on  the  vendei-.  and  ileprlve 
him  of  property  to  which  he  hail  b'vonie 
lenally  eiititleil.  Bi'sides,  the  owner  of 
Inml  cannot,  by  a  subse(|uent  revocation 
of  his  license,  render  that  unlawful  which, 
with  all  Its  incidents  and  necessary  conse- 
quences, was  lawful  at  the  time  it  watt 
done,  by  virtue  of  his  own  authority  anil 
consent. 

The  true  distinction  between  an  execu- 
tory verbal  license  lo  enter  tin  l:ir.d  under 
a  contract  for  the  8ule  of  timber  or  tree* 


338 


GILES  V.  SIMONDS. 


growing  thereon,  and  a  Hiniilar  license  ex- 
ecuted, seems  to  i)e  this:  The  former  con- 
fers no  vested  interest  or  property  uo 
money  or  lal)or  is  espeixled  oii  the  I'aitli 
of  it,  and  no  rigjit  OP  title  is  iini)aire(l  or 
lost  by  its  revocation.  If  tlie  party  to 
whom  it  is  granted  is  injured  l)y  its  vrith- 
drawal.his  remedy  is  Ijy  an  action  asainst 
the  licenser  for  a  breach  of  the  ctjntract. 
It  cannot  be  held  to  extend  further,  so  as 
to  confer  a  riglit  to  use  tlie  land  of  an- 
other without  his  consent,  because  it 
vyould  thus  confer  ex  proprio  vigore,  an 
interest  in  land,  which  cannot  be  created 
except  by  a  writing.  But  such  a  license 
executed,  to  the  extent,  to  which  it  has 
been  acted  on,  has  operated  to  induce  the 
vendee  to  expend  money  and  services  on 
the  property,  and  thereby  to  convert  it 
into  personal  chattels  which  have  become 
vested  in  him.  The  revocation  of  the 
license  in  such  case  would  deprive  the  ven- 
dee of  his  property.     It  has  therefore  been 


held  that  such  a  license,  while  it  is  execu- 
tory, may  lie  countermanded,  but  that 
when  executed  it  becomes  irrevocable. 
Cook  V.  Stearns,  11  Mass.  ii33.  Cheever  v. 
Pearson,  IG  Pick.  273.  RurkIcs  v.  Lesure, 
24  Pick.  190.  Clattin  v.  Carpenter,  4  Met. 
.'JSO.     Nettletou  v.  Hikes,  S  Met.  34. 

Applying  these  principles  to  the  case  be- 
fore us,  it  is  clear  that  the  defendant  could 
not  justify  the  acts  of  trespass  charged  in 
the  declaration.  Before  l)is  entry  on  the 
land  for  the  purpose  of  cutting  trees,  the 
plaintiff  revoked  the  license  which  he  had 
given  by  the  verbal  contract  of  sale  under 
whicli  the  ilefendant  claimed  to  act.  So 
far  as  the  license  was  executory  it  was 
revocable,  and  the  entry  of  the  defendant 
after  its  revocation  was  unlawful. 

The  view  which  we  have  taken  of  thecase 
seems  to  render  a  decision  of  the  otlier 
questions  raised  by  the  exceptions  unnec- 
essar.y. 

Exceptions  sustained. 


I 


GIJJ.  V.  BENJAMIN. 


341 


GILL  et  al.  v.  BKN.IAMLN. 

(25  N.  W.  Rep.  445,  &i  Wis.  3(52.) 

Supn-ini-   Court    of   Wisconsin.      Nov.    3,    18S5. 

Aiipi-Jil  from  county  court,  Milwaukee 
county. 

TiiL'futtH  fullv  fippenr  in  the  following 
statcnicnt  by  CASSODAY,  .1.: 

Tlic  plaintiffs  were  enKJ'Ked  in  tlie  busi- 
ness of  fnniiHhin)^  wood  l>y  contract  at 
•  Jill's  I'iei-,  .\Iic!ii;;an.  The  defenilant  was 
a  woud  anil  coal  dealer  at  Mdwaiikee. 
.\Iurcli  I.  1SS4,  the  plaintiffs  sent  to  the  de- 
fendant tliefollowing  written  proposition, 
\\  liicli  was  Hceepted  in  writing  by  the  de- 
fendant, as  follows:  "fiilTs  t'ier,  Mich., 
.March  1,  l,>ss>4.  H.  M.  lienjainin,  .Mil- 
waukee, Wis.  —  Dear  !Sir:  We  will  sell 
Jind  deliver  to  you  one  thousand  cords 
maple  wood,  to  he  delivered  from  Gill's 
I'ier,  l^eelenaw  ci^unty,  Mich.,  over  the 
rail  of  the  vessel,  at  three  dollars  antl 
twenty-five  cents  jf.'J.i;.'))  per  cord  :  all  the 
wood  to  he  sound  body,  inarketal>K>  ina|>le 
wood,  and  to  be  delivered  from  time  to 
time  to  your  vessel  as  wanted  during  the 
season  of  navigation  of  1SS4.  The  said 
wooil  to  lie  piled  .-is  taken  from  vessel, 
and  to  he  measured  and  paid  for  when 
piled  on  your  ilock  in  .Milwaukee,  Wis. 
Vours,  respectfully,  William  (iill  &  Son. 
1  accept  the  above.  Milwaukee,  March  10, 
1SH4.     II.  .\l.  Henjamin." 

The  undisputed  evidence  was  to  the 
effect  that  tlie  captain  of  the  scliooner 
.Surprise,  a  vessel  owiie<l  by  the  defendant, 
took  the  lirst  cargo  of  wood  from  the 
plaintiffs'  pier  on  June  30,  ISS4,  and  at  va- 
rious times  thereafter  chartered  certain 
other  vessels  to  transport  cargoes  to  the 
<lefendant'sdock  in  .Milwaukee;  that  there 
were  in  all,  aside  from  the  one  in  dispute, 
six  of  these  cargoes,  ngKregating  V!:!^^ 
cords  of  wood,  which  were  loaded  at  (iill's 
I'ier,  carried  across  Lake  .Michigjin,  unload- 
ed, assorted,  piled,  and  measured  on  the 
defendjiiit's  dock  at  .MiUvaukee,  and  then 
paid  for;  that  two  of  the  six  cargoes  were 
delivered  anil  received  after  October  7, 
IsM;  that  the  defendant  paid  the  freight 
for  such  transportation,  and  the  expense 
of  unloading. culling,  and  i)iliiig  the  wood, 
and  part  of  tlie  expen.-<(!  of  measuring; 
tlint  the  plaintiffs  paid  the  expense  of 
placing  the  wood  over  the  rail  of  the  ves- 
sel ut  their  pier,  and  employed  and  paid 
one  .Saveland.  residing  ;i  t  .N.ilwaiikce.  as 
their  agent  in  doinc  whatever  was  neces- 
sary t<i  be  done  in  such  measurement,  and 
sen. ling  a  statement  t hereof  to  the  plain- 
tiffs; that  in  the  six  cargoes  so  delivered 
LM>  cords  were  treated  aHculN.anil  paid  U-v 
at  a  less  ratethan  the'-ontract  price;  that 
«oo.I  sound,  marketai  le  maple  wood 
could  be  culled:  that  the  per  cent,  of  culls 
in  the  six  cargoes  mentioned  was  very 
small— unusually  so;  that  the  defendant 
Jilways  dealt  fairly  about  culling  wood; 
that  the  J.  E.  Bailey,  chartered  by  the 
captain  of  the  Surprise  for  that  purpose, 
was  present  at  (Jill's  I'ier,  .Mirliiijan,  O.-to- 
her  7,  l■^^4,  to  get  a  cargo  of  wood  for  the 
defendant  under  the  contract,  when  the 
plaintiffs  delivered  over  the  rail  of  the 
Bailey  ut    that   place   lOo  curds   ofgood 


[sound,  marketable,  body  maple  wood, 
[sawed  ends,"  aside  from  the  wood  here- 
in before  mentioned,  which  l.",.-.  cords  of 
wood  the  vessel's  crew,  and  the  men  they 
hired,  (liled  and  stowed  on  the  Baili-y  ; 
that  the  last  was  put  on  board  nboiit 
half  past  six  in  the  evening  of  October  7, 
18S4;  that  the  1;').-.  cords  did  not  constitute 
o  full  cargo  for  the  Bailey,  as  she  was  ca- 
llable of  c;irrying  1!).'.  to  IJiiO  cords  of  such 
wood;  that  the  captain  thereof  gave  the 
plaintiff*  a  receipt  therefor  a  day  or  two 
after  in  these  words :  "Gill's  Pier,  Mich., 
October  7.  Iss4.  Shipped  in  good  oriler 
and  condition,  tiy  William  Gill  &  Son,  at 
the  risk  of  whom  it  may  concern,  on 
lionrd  the  J.  E.  Bailey,  whereof  Bereiison 
is  ni.ister,  now  in  port  at  Gills  I'ier, 
bound  for  .Milwaukee,  Wis.,  \m  cords 
maple  wood.  Henry  Berenson."  The 
night  after  the  wood  was  so  put  ou  board 
the  Bailey  it  began  to  rain  quite  heavily 
and  the  wind  blew,  and  the  next  morning 
the  Bailey  was  ashore,  and  the  l.Vi  cords  of 
wood  was  partly  washed  overboard,  and 
the  balance  thrown  overboard  by  those 
in  charge  of  the  vessel,  and  became  a 
total  loss;  the  captain  thereupon  tele- 
graphed the  defendant  to  the  effect  that 
the  schooner  Bailey  w;is  ashore  with  l.">5 
cords  of  his  wood  ;  the  plaintiff  admitted 
that  the  wood  placed  on  the  Bailey  was 
of  the  same  kind  and  character  in  general 
as  the  other  wood  delivered,  except  the 
latter  had  a  part  cargo  of  dry  wooil ;  this 
action  is  to  recover  for  the  l.'i.l  cords  of 
wood  at  the  contract  [irice.  and  intere-it 
from  November  1.  ISM.  Upon  the  facts 
stated  the  court  directed  n  verdict  for  the 
plaintiffs,  and  from  the  judgment  entered 
thereon  the  defendant  appeals. 

Markham  &  Noyes.  for  appellant.  J.  E. 
Wlldish,  for  respondents. 

CAS,SODAV,  J.  The  facts  are  undls- 
puted.  Does  the  law  [lut  the  loss  of  the 
I.').')  cords  of  wood  upon  the  pl.'iintiffs  <ip 
the  defendant".'  The  contract  when  made 
was  executory.  The  plaintiffs  thereby 
agreed  to  sell  and  deliver  to  the  defend- 
ant l.nno  cords  of  wood.  The  wood  was 
to  be  of  the  kii:d  and  iiuality  named  in  the 
contract.  No  iiartiLUlnr  l.iMio  cords  of 
wood  was  then  designated  nor  described 
therein.  It  was  all  "to  be  delivered  from 
(iili's  Pier  »  •  •  over  the  rail  of  the 
vessel."  It  was,  moreover,  "  to  be  deliv- 
ered froui  time  to  time"  at  that  place,  "UH 
wanted,  during  the  season  of  navigation 
of  Issf."  The  Bailey  was  chartered  liy  the 
captain  of  the  defendiinl's  vessel,  and  for 
the  luirposes  of  the  contract  must  be  re- 
garded the  same  as  though  it  were  the 
liroperty  of  the  defendant.  True,  each 
cargo  was  "  to  be  piled  on  the  defendnnt's 
dock  in  .Milwaukee"  as  taken  from  the 
vessel,  and  to  lie  measured  and  iiniil  for 
at  the  price  named  when  so  idled.  Fills 
raises  the  ipiestion  whethrr,  by  the  terms 
of  the  agreement,  the  title  of  each  cargo 
became  vested  in  the  defendant  when  ile- 
livered  to  and  "over  the  rail  of  the"  de- 
fendant's vessel  at  tiill's  Pier,  or  remained 
vesteil  in  the  plaintiffs  while  being  curried 
across  the  lake  on  the  defendant's  vessel, 
and  until   taken  from  his  vedsel  and   piled 


342 


GILL  c.  BENJAMIN. 


on  his  dock  in  Milwanl<ee.  If  the  title  to 
each  oirgo  reuiaineO  vested  in  the  plain- 
tiffs until  piled  on  the  dcfend.Tnt's  dock  in 
Mil  waiikee,  then  did  it  continue  to  be  vest- 
ed in  tlioni  until  measured;  and  if  until 
measured,  tlien  did  it  remain  vested  in 
them  until  paid  for?  The  piliuR  on  the 
dock  was  appiircntly  to  facilitate  the 
measurement,  and  tlie  measurement  was 
apparently  to  ascertain  the  amount  to 
be  paid.  But  can  it  he  that  the  title  of  a 
coruo  so  piled  upon  the  defendant's  dock 
and  measured  dill  not  heconie  vested  in  the 
defendant  until  he  liad  paid  tor  it:  and  if 
it  became  vested  in  him  before  he  paid  for 
it,  then  why  n;)t  before  it  was  measured 
or  i)ile(l  on  his  dock  or  taken  from  his  ves- 
sel? The  words  "sell  and  deliver  to  you 
*  *  *  from  Gill's  Pier,  »  *  •  over 
the  rail  of  the  vessel,"  clearly  designated 
that  as  the  place  of  delivery. 

On  the  delivery  of  any  car^o  being  made 
in  that  way  at  that  place,  the  possession 
of  such  cargo  was  Uianifestly  intended  by 
the  contract  to  immediately  pass  entirely 
from  and  beyond  the  ct)ntrol  of  the  plain- 
tiffs into  the  absolute  and  e.xclusive  pos- 
session and  control  of  the  defendant. 
The  vessel  upon  which  such  cargo  was  so 
placed  belonged  to  the  defendant,  and  was 
controlled  by  his  captain;  or  else  the  ves- 
sel was  chartered  by  his  captain  for  his 
service  in  the  transportation  of  such  car- 
go, and  hence  was,  so  far  as  the  contract 
was  concerned,  his  vessel  for  that  voyage 
for  the  purposes  of  such  transportation. 
The  plaintiffs  had  no  control  over  the 
management  of  the  vessel,  nor  the  direc- 
tion in  which  it  should  go,  nor  the  port 
at  which  it  should  land.  The  contract, 
though  e.'secutory  when  made,  yet  as  it 
contemplated  a  delivery  from  time  to 
time,  as  wanted,  in  separate  cargoes,  each 
of  wiiieh  was  to  be  paid  for  as  indicated, 
it  was  clearly  severable.  Scott  v.  Kittan- 
ning  Coal  Co.,  Si)  Pa.  St.  231 ;  Goodwin  v. 
Merrill,  13  Wis.  65S;  Sawyer  v.  Chicago  & 
N.  W.  Ry.  Co.,  22  Wis.  385.  This  being  so, 
it  necessaril.v  follows  that,  as  each  cargo 
was  delivered  on  board  thedefendant's  ves- 
sel, the  contract  as  to  such  cargo  became 
an  executed  sale,  so  far  as  the  plaintiffs 
were  concerned,  unless  the  mere  fact  that 
their  man  was  expected  to  participate  in 
the  measurement  of  such  cargo  when  piled 
on  the  defendant's  dock  prevented  the 
title  to  such  cargo  from  becoming  vested 
in  the  defendant  until  so  measured.  Mor- 
row V.  Reed,  30  Wis.  SI ;  Mi>rrow  v. Camp- 
bell, Id.  90;  Fletcher  v.  Ingram, -JG  Wis. 
191,  .'lO  N.  W.  Rep. 424;  Scott  v.Kittanning 
Coal  Co.,  supra. 

Such  being  the  wording  and  effect  of  the 
contract,  we  must  hold  that  each  cargo, 
on  being  delivered  "over  the  rail  of  the 
vessel"  sent  for  that  jmrpose  oy  the  de- 
fendant or  his  captain,  became  at  once  the 
property  of  the  defendant,  unless  the  stip- 
ulation for  piling  and  measuring  on  the 
defendant's  dock,  bi-fore  payment,  i)re- 
vented  the  title  from  so  vesting  in  him. 
')f  course  the  155  cords,  being  lost,  was 
not  so  piled  on  the  defendant's  dock  in 
Milwaukee,  nor  measured  ;  and  thereforeit 
is  claimed  there  is  no  obligation  to  pay. 
The  contract  contemplates  no  such  loss. 
It  contains  no  stipulation    as   to   any  one 


taking  the  risks  of  the  perils  of  the  lake. 
Without  such  stipulation,  such  risk  would 
necessarily  tall  upon  the  owner  of  the 
cargo  at  the  time  of  loss.  It  will  be  ob- 
served that  the  contract  contains  no 
8tii)ulaiion  for  any  inspection  or  sorting 
of  tlie  wood  on  the  defendant's  dock.  The 
wood  was  to  be  taken  from  the  vessel, 
piled  and  measured  on  the  dock  ;  but  it  is 
i  silent  as  to  who  shoidd  do  the  piling  or 
i  the  measuring.  It  seems  to  be  conceded 
that  the  delcndant  was  to  do  the  i)ilii)g. 
lit  ma.v  he  inferable  that  the  i)laintiffs' 
man  was  exjiected  to  witness  or  partici- 
pate in  the  measurement  of  every  cargo, 
as  he  did  of  each  that  was  so  piled  on  the 
dock.  Was  such  piling  and  nieasuiing  a 
condition  precedent  to  the  vesting  of  the 
title  thereof  in  the  defendant?  Where  the 
manifest  intention  of  the  parties  is  to 
transfer  the  title,  the  sale  may  be  com- 
plete, notwithstanding  the  property  is 
yet  tobe  measured,  and  thearaount  of  the 
price  yet  to  be  ascertaineil.  Sewell  v. 
Eaton,  6  Wis.  490;  McConnell  v.  Hughes, 
29  Win.  537;  .Morrow  v.  Campbell,  supra ; 
Fletcher  v.  Ingram,  sui)ra.  .So  held  where, 
by  the  agreement,  the  vendee  was  to  have 
the  title  to  saw-logs  as  soon  as  the  ven- 
dor deposited  them  in  a  certain  i)lace. 
Morrow  v.  Reed,  supra.  These  principles 
are  fully  recognized  and  sanctioned  in  Pike 
V.  Vaughn,  39  Wis.  505,  relied  upon  by 
counsel  for  the  defendant.  Thus, in  Dixon 
V.  Baldwen,  5  Kast,  175,  A.  <fc  B.,  traders 
in  London,  ordered  goods  from  the  defend- 
ants at  Manchester  to  be  sent  to  M.  & 
Co.,  at  Hull,  for  the  purpose  of  being  aft- 
erwards .sent  to  the  corresjjondents  of  A. 
&  B.  at  Hamburg,  and  the  defendants 
sent  the  goods  to  i\I.  i*i  Co.  at  Hull  to  be 
shipped  by  them  to  Hamburg,  as  usual, 
pursuant  to  the  order;  and  it  was  held 
as  between  the  buyer  and  seller,  the  right 
of  the  defendants  to  stop  as  in  transitu 
was  at  an  end  when  the  goods  came  to  the 
possession  of  M.  &  Co.  at  Hull;  for  they 
were  for  thispurpose  theappoinied  agents 
<»f  the  vendees,  and  received  orders  from 
them  as  to  the  ulterior  destination  of  the 
goods;  and  the  goods,  after  their  arrival 
at  Hull,  were  to  receive  a  new  direction 
from  the  vendees.  To  the  same  effect, 
Kendal  V.  Marshall,  11  Q,  B.  Div.  350;  Ex 
parte  .Miles,  15  Q.  B,  Div.  :i9. 

We  must  hold  that  the  intention  of  the 
parties,  as  expressed  in  the  contract,  was 
that  the  title  to  each  cargo  should  imme- 
diately vest  in  the  defendant  on  being 
placed  on  board  of  the  defendant's  vessel 
at  Gill's  Pier.  True,  the  contract  pro- 
vifles,  in  effect,  that  each  cargo  was  to  be 
]"l)aid  for  when  piled  on  "  the  defendant's 
j  dock  in  Milwaukee,  and  that  the  cargo  of 
155  cords  was  never  so  piled  on  that 
dock.  But  theundisputed  evidence  shows 
that  the  failure  to  so  pile  on  the  <lefend- 
ant's  dock  was  in  no  way  attril)utable  to 
the  i)lain tiffs.  It  may  be  conceded,  also, 
that  it  was  not  the  fault  of  the  defendant 
nor  his  agents,  although  the  cargo  was  in 
the  exclusive  possession  of  the  defendant 
at  the  time  it  was  lost.  Assuming  that 
the  loss  of  the  cargo  was  not  the  fault  of 
the  defendant's  agents,  then  such  piling 
on  the  defnndant's  dock  was  rendered  im- 
possible solely    by    the   act    of   God,   and 


GILL  c.  HEN.IAMIN. 


343 


hence  the  defendant,  npon  Its  loss,  there- 
upon liecaine  liaiile  for  its  valiif.  I'dwcfh 
V.  UelliiiKer.  .VI  Wis.  ■JbU.  II  X.  \V.  K.-p.  .V.i7 ; 
Niiuent  V.  Smith.  1  C.  I'.  Div.  4i<;  2  Ik-nj. 
Sales.  §S(;i. 

It  appears  from  the  andifiputerl  evidence 
that  the  lij.")  cords  of  wood  lost  was  of  the 
kind  and  substantially  of  the  quality 
called  for  in  the  contract,  and  the  same  as 
the  other  wood  which  had  been  received 
hy  the  defendant  without  any  objection, 
although  a  deduction  was  made  in  the 
price  of  20  cords  called  culls.  The  title  to 
the  !.">.">  cords  of  wood  havinir  become 
vested  in  the  defendant  when  the  same 
was  placed  on  board  of  the  Bailey,  and 
the  captain  of  the  15ailey  being  in  law 
the  ajrent  of  the  defendant  for  the  pur- 
pose of  receiving  the  wood,  and  having 
received  the  same  on  brjanl  the  Bailey 
without  any  objection  as  to  quality,  and 
the  wood  having  been  lost,  as  indicated, 
it  may  be  very  doubtful  whether  any 
damages  could  be  recovered  in  this  action, 
even  had  there  been  a  counter-claim  for 
such  damages  in  the  answer.  Locke  v. 
Williamson,  40    Wis.  377.     But   here  there 


was  no  such  countrr-olaim.  ami  hence  the 
ipieHtion  need  ni>t  be  diterrnltied.  The  de- 
fenriant  does  claim  damages  by  way  of 
counter-claim,  however,  for  the  failure  to 
deliver  the  balance  of  thel.lMK)  cords  called 
for  by  the  contract.  Including  the  15.">  lost. 
But  the  contract  «jnly  re<|iilred  that  the 
plaintiffs  should  deliver  the  wood  at  their 
pier  to  the  defendant's  vessel  from  time  to 
time,  "as  wanted,  during  the  season  of 
navigation  of  l'^^4."  There  is  no  evidence 
of  any  failure  to  deliver  any  wood  "an 
wanted"  by  the  defendant  "during  thai 
season,  nor  of  any  unreasonntile  delay  in 
furnishing  wood  to  any  vessel  calling  for 
it  at  the  plaintiff's  pier  in  hthalf  of  the  de- 
fendant. 

We  discover  no  ground  upon  which  the 
defendant  is  entitled  to  any  ilaniagi-H  un- 
der his  counter-claim.  Simpson  v.  l"ri|)- 
pin,  L.  R.  H  Q.  B.  14;  Higgins  v.  Delaware. 
L.  &  W.  R.  Co..  6U  S.  Y.  .">5:i;  .Scott  v.  Kit- 
tanning  ('oalCo..80pra  ;  Ha inesr. Tucker, 
50  N.  H.  a07. 

BV  THECOL'HT.  The  judgment  of  the 
county  court  Is  affirmed 


GIROUX  V.  STi:i).\rAX. 


345 


OIROUX  V.  STROMA N  et  al.,  (three  cases.) 

I'i:c.)l(I>  V.   SAMK. 

(14  N.  E.  Uep.  538,  145  Mass.  430.) 

Siiiin-mo  .Tiidiciiil   Court  of  Massachusetts. 
HaiiiixJeii.     Jan.  4,  18S8. 

K.xcpptioiiB  from  Ktipci-ior  court,  Hunip- 
(Icii  iMiiiiity  :   I'itiiiiin,  .IihI^c 

'I'licse  wiM'o  aclioiiH  hrouKht  by  Hidinrd 
<iiri)iix,  Mary  (Jiniii.x,  .JoHcpli  I'pi-ord,  and 
Mary  <;ii'i)ii.\,  ( liy  her  next  (rifiid, )  aj^iiifiHt 
IMiiricas  Slciliiian  and  another,  to  recDViT 
iliiiiiaKCK  lor  tortH  coniiiiit ti'd  by  them  in 
Helling'  to  the  plaintiffs  pork  ntifit  for 
food.  The  pliiintiffH  claimed  to  have  pur- 
ehascd  from  the  defendantM  certain  pro- 
visionH,  to  wit.  certain  ((uantitleH  of 
drcHseil  pork;  that  naiil  pork  wa.s  tainted, 
and  unlit  for  fooil :  tijat  they  ate  of  Haid 
pork,  and  were  made  Hick  tliei'ehy  At 
the  trial  in  the  Mupi'rior  court,  tiio  evi- 
deiK'e  Kliowed  that  the  (h'fendantH  were 
farnierH  carryinir  on  a  farm  in  Cliicopee, 
and  jointly  interested  in  raisins  pij^s: 
that  ahoiic  the  middle  of  Septemher,  l.ss."i, 
the  defendants  found  that  an  infectious 
disease,  known  as  "  hou  cholera, "' existed 
upon  their  farm,  and  that  their  entire 
heril  h.id  lieen  exposed  to  the  disease; 
that  on  ()rtol)er  :>,  IS.'s."),  tne  defendants 
liilleil  two  of  their  hoKH.  dressed  them, 
.ind  sold  one-half  of  one  of  them  to  the 
plaintilf  Itich.ird  (Jircuix,  and  oi;e  half  of 
the  othei'  lio^  to  the  plaintiff  .losepli 
I'ecord  ;  that  on  Octoher  oth  the  defend- 
ants killed  and  dresscil  two  other  lions, 
one  of  which  \\as  sold  to  the  plaintiff  Pec 
ord.  'I'lie  evidence  showed,  further,  that, 
at  the  timi'  of  the  several  sales  to  the 
plaintiffs,  no  representatioiLs  as  to  the 
<|ualily  of  the  meat  were  made,  and  no 
notice  f;iven  to  the  plaintiffs,  at  the  times 
of  the  s:iles,  of  the  existence  of  the  disease 
anion;;  the  herds  owned  hy  the  defond- 
ants;  hut  it  aiipcarcd  that  the  defendants 
knew,  at  the  tiiiie  of  ilie  several  sales  to 
the  several  plaiulilTs,  that  the  meat  so 
sold  hy  them  to  the  plaintiff  was  to  1)0 
used  liy  the  plaintiffs  for  provisions.  The 
presidium;  jiidKc  instrnctcd  the  jury  In 
term.-',  the  substance  of  which  appears  in 
the  opinion.  The  jury  returned  a  verdict 
lor  the  defendants,  and  the  plaintiffs  ol- 
lejted  exceptions. 

\V.  W.  .McClench,  for  plaintiffs.  E.  W. 
( 'ha pi  11.  foi  defendants. 

I)1:\'I;NS.  .1.  it  whs  known  to  the  de- 
fendants that  tlie  pliiintiffs  purchased  the 
meat  to  he  used  as  provisions,  but  it  was 
held  by  the  presiilins'  jndKc  that,  in  order 
that  they  should  recover,  they  iiinst  prove 
the  allei;.itions  ill  their  declarations  that 
tin-  defcudauts  knew  that  th''  meat  sold 
liy  them  was  nnwholesouie,  and  improper 
to  l)e  used  as  provisions,  lie  iiistrncted 
tliejurj  that, at  common  law,  the  jieuerHl 
rul(>  is  th.Mt  where  personal  property  is 
sold  in  the  presence  of  buyer  anil  seller, 
ouch  haviiif;  an  opportunity  to  see  the 
proiierty,  and  there  is  iiothiu;;  saiil  as  to 
the  i|uality,  the  only  implied  warranty  on 
the  part  of  the  seller  Is  that  '"e  has  a  valiil 
title  in,  or  has  n  rl^ht  to  sell,  the  chattel. 


Fie  added  that  there  is  on  exception  to 
this  fieneral  rule,  where  a  provision  flpolcr 
or  inurket-maii  sells  provlsioiiH.  as  meat 
and  veK;etableH.  to  his  customers  for  use: 
and  that  in  such  case  there  would  bean 
implied  warranty  that  they  wi-re  lit  for 
use,  and  wholesome.  WhethVr  this  excep- 
tion exists  or  not  it  is  not  important.  In 
j  the  case  at  bar,  to  imiuire,  as  it  cannot 
be,  and  was  not  conlendeil,  tliat  the  Je- 
fendants  were  brou;;lit  within  It.  The 
contention  of  the  plaintiffs  is  that,  even 
If  the  rule  is  well  established  that  where 
there  is  no  express  warranty,  and  no 
fraud,  no  warranty  of  the  iiuality  of  the 
tiling  sold  is  implied  by  law.  and  that 
the  maxim  (jf  caveat  emptor  a|iplies,  there 
is  ,•!  more  (teneral  exception,  which  e*- 
cludes  from  its  operation  all  sales  of  pro- 
visions for  immediate  iloiueslic  use.  no 
matter  by  whom  made.  That  in  a  sole  of 
an  animal  by  one  denier  to  another,  even 
with  the  knowledKt  that  the  latter  dealer 
intends  (o  convert  it  into  meat  for  do- 
mestic use,  or  that,  in  the  s/ile  of  provi- 
sions in  the  course  <if  commercial  transac- 
tions, there  is  no  implied  warranty  of  the 
quality,  appears  to  be  well  settled.  Iir»w- 
urd  V  iMiierson,  11(1  Mass.  :JJU.  and  case8 
cited:  liuruby    v.  Itollett,   lli   Mees   &    W. 

While  occasional  expressions  may  be 
found  (as  in  Van  Hracklin  v.  Fonda,  12 
Johns.  -ICiS)  which  sustain  the  plaintiffs' 
contention,  we  liave  f<iund  but  one  de- 
cided case  which  supports  it.  In  Van 
lirncklin  v.  Fonda,  iibi  suiwa.  it  is  said 
that,  in  a  sale  of  provisions,  the  vendor  is 
Ijouiid  to  know  that  they  are  sound  a  I  his 
peril:  but  the  case  shows  that  tlieilvfend- 
aiil,  who  had  sold  beef  for  donie.-tic  use. 
knew  the  animal  from  which  it  came  to  be 
diseased.  This  had  lieen  found  by  the 
jury,  and  the  remark  is  made  in  connec- 
tion with  the  facts  proved.  The  case  of 
Hoover  V.  I'eters,  IS  .Mich,  ."il,  does  sustain 
the  plaintiffs'  contention,  as  it  is  there 
held     that     where    articles    of    food    ore 

I  bout;lit  for  domestic  consumiilion.  and 
the  vendor  sells  them  for  that  express  pur- 
pose, the  law  implies  a  warranty  that 
they  are  fit  for  such  purpose,  whether  the 
sale  be  made  by  a  retail  dealer   or   by  any 

Dther  person.  This  case  imposes  a  heav- 
ier liability  mi  n  pers(ni  not  en>;ai;pd  In 
the  sale  f)f  provisions  .as  a  liusincss  than 
he  should  be  called  on  to  liear.     The  opln- 

1  ion  is  not  suiiported  l)y  any  citation  of 
authorities.     In   a   (lisscntiu!;   opinhiii  by 

I  Mr.  Justice  ("hristiancy,  it  is  sjiid  :  "Had 
it  appeared  that  he  [the  defendant]  was 
the  keeper  of  a  meat  market  or  butcher 
shop,  and  was  eiijiascil  in  the  iiuslness  of 
selling  meat  for  foorl,  and  therefore  bound 
<>••  presumed  to  know  whether  It  was  lit 
for  that  purpose,  I  should  ha ve  concurred 
in  the  opinion  my  brethren  have  ex- 
pressed." If  there  is  an  exception  to  the 
rule  of  i-ave;it  emptor  which  ::rows  out 
of  the  circumstances  of  the  case,  and  the 
relations  of  buyer  ami  seller,  where  the 
latter  is  a  general  dealer,  anil  the  former 
a  luirchaser  for  immeiliate  use.  there  ap- 
pears no  reason  why  it  should  bo  further 
extended. 

j      In    the  case  at  bar.  the  defendants  were 

I  not    common    dealers     In    provisions    or 


346 


GIROUX  V.  STEDMA>r. 


raarket-nieu.  They  wore  fnnr.ern,  KclliiiK 
a  portion  of  the  iirodme  of  their  fiiriiiH. 
No  representations  of  the  qnality  of  the 
meat  sohl  were  made  liy  tliem.  !n  niali- 
ing  casuiil  Bales  from  a  farm  of  it.s  prod 
ucts.  to  liohl  the  owner  to  the  duty  of 
ascertaining,  at  his  peril,  tlie  cotiditiori  of 
the  articles  sold,  and  of  ini|ilie<lly  war- 
ranting, if  sold  with  the  knowledge  that 
Ihey  are  to  lie  nsed  as  food,  that  they  are 
fit  for  the  i)urpose,  imposes  a  larger  lia- 
bility than  should  h<?  placed  upon  one  who 
may  often  have  no  better  nieansof  knowl- 
edge than  the  purchaser.  Tlie  plaintiffs 
contend  that  the  case  of  French  v.  Vining, 
lOL'  Mass  V.j2.  is  ilecisive  in  their  favm-, 
bu t  it  a[)pear8  to  us  otherwise.  In  that 
case,  the  defendant  sold  hay,  which  he 
knew  had  been  poisoned,  for  the  purpose 
of  l;eing  fed  to  a  cow,  although  he  had 
carefully  endeavored  to  separate  tlie  dam- 
aged [lortion  from  the  rest,  and  supposed 
he  had  succeeded.  From  the  eflects  of 
eating  the  hay  the  cow  died,  and  the  de- 
fendant was  lield  liable.  His  knowledge 
<jf  the  injury  to  the  hay  was  certain  and 
positive;  his   belief   that    ho  had  remedied 


the  ditticulty  was  conjeclnral  and  uncer- 
tain, and  pi  oved  to  be  wholly  erroiu-oiis. 
In  the  case  at  bar.  while  the  dofotidant's 
herd  had  been  exposed  to  hog  cholera, 
there  Mas  evidence  that  a  portion  of  it 
only  had  been  affected:  and,  further,  that, 
even  if  affected,  the  meat  of  the  aniiiials 
was  not  necessarily  unwholesome.  There 
was  no  evidence  that  the  animals  whose 
meat  was  sold  had  ever,  so  far  as  the  de- 
fendants knew,  actually  liad  the  disease. 
and  the  verdict  of  the  jur.\-  has  establislicil 
that  they  were  igncjrant  that  tli<'  meat 
sold  b.v  them  was  un wlulesome.  In 
French  v.  Vining  the  defendant  knew  what 
the  condition  of  the  hay  had  been,  and 
this  is  a  vital  partof  the  cose.  He  sold  an 
article  which  he  knew  had  been  poisoned, 
and  fi'om  which  he  had  taken  no  effectual 
means  to  remove  the  poison.  His  belief 
or  supposition  that  his  effort  had  been 
successful  could  not  relieve  him  from  lia- 
bility for  thr-  conse()uences  that  ensued  be- 
cause it  had  been  unsuccessful,  it  he  sold 
the  hay  without  informing  the  purchaser 
of  the  dangerous  injury  which  it  had  re- 
ceived.    Kxceptions  overruled. 


ll 


GODDARD  V.  BINNEY. 


S4!> 


GODDARD  T.  BINNEY. 

(115  Mass.  450.) 

Supreme  Judicial  Court  of  Massachusetts.    Suf- 
folk.    fcSept.  4,  1ST4. 

Contrnot  to  rerover  tlie  price  of  a  biicKy 
liuilt  l)y  pliiliitift  for  (Itrcndant.  Plaintiff 
H<;r('i'(l  to  tniilil  a  l)u««.v  for  defeudant, 
jiiiil  tu  di'livcr  it  at  a  certain  time.  De- 
fendant nave  Hpecial  directioiiM  at<  to  Kt.vle 
/ind  liniHli.  The  liiifitl.v  waH  Imilt  accord- 
ing: to  directioiiH.  llefore  it  was  finished, 
defendant  called  to  see  it.  and  In  answer 
to  phiintiff,  who  asked  him  if  he  woulil 
sell  it,  said  no;  that  he  would  keep  it. 
When  the  biiu^y  was  finished.  i)laintiff 
sent  a  hill  for  it,  which  defendant  retained, 
promisiriK  to  see  plaintiff  in  regard  to  it. 
The  l)nj;;>?y  was  afterwards  burned  in 
plaintiff'H  possession.  The  case  was  re- 
[)orted  to  the  supreme  judicial  court. 

C.  A.  Welch,  for  plaintiff.  G.  Putnam, 
Jr.,  for  defendant. 

AMES,  J.  Whether  on  aKreemcnt  like 
that  descrihed  in  this  reixirt  should  be 
comidered  as  a  contract  fur  the  sale  of 
goods,  within  the  inianinp;  of  the  statute 
of  frauds,  or  a  contract  for  laboi',  services 
and  materials,  and  therefoi'e  not  within 
tliat  statute,  is  a  question  upon  which 
there  is  a  contlict  of  authority.  According 
to  a  long  course  of  decisions  in  New  York, 
anil  in  some  other  states  of  the  Union,  an 
agieemeiit  for  the  sale  of  any  commodity 
not  in  existence  at  the  time,  but  which  the 
vendor  is  to  manufacture  or  put  in  a  con- 
<litiou  to  be  delivered,  (such  as  flour  from 
wheat  not  yet  ground,  or  nails  to  be  made 
from  iron  in  the  vendor's  hands),  is  not 
a  contract  of  sale  within  the  meaning  of 
the  statute,  ''rookshank  v.  Burrell,  Is 
Johns.  58.  Sewall  v.  Fitch.  S  Cow.  L'l.>. 
Hobertson  v.  Vaughn.  :j  iSaiidf.  1.  Downs 
V.  Hoss,  L'.'i  Wend.  1!70.  Eiclielberger  v. 
M'Cauley,  .">  iiar.  &  .1.  21:1  In  England, 
on  the  other  hand,  the  tendency  of  (he  re- 
cent decisions  is  to  treat  all  contracts  of 
such  a  kind  intended  to  result  in  a  sale, 
as  snbstaiitinll.v  contracts  for  the  sale  of 
chattels;  and  the  decision  in  Lee  v.tJrillin, 
I  I!.  &  S.  1.'7L'.  goes  so  far  as  to  hold  tliat  a 
colli  I  act  to  make  and  tit  a  set  of  artiliclal 
teeth  (or  a  patient  is  essentially  a  con- 
tract for  the  sale  of  goods,  and  therefore 
is  suliject  to  the  provisions  of  the  statute. 
Nee  .\Iaberlev  v.  Sheppard,  10  Bing.  'M\ 
Howe  V.  Palmer.  S  15.  &  Aid.  ai'l  ;  Haldey 
V.  Parker.  1'  U.  &  (;.  37;  Atkinson  v.  Bell, 
8B.  &C.  277. 

In  this  commonwealth,  a  rule  avoiding 
both  of  these  extremes  was  established  In 
Mixer  v.  IIowarth.21  Pick.  20"),  and  has 
been  recognized  and  aflirnied  in  repeated 
decisions  of  more  rirent  <la  te.  The  effect 
of  these  decisions  we  understand  to  be 
this,  namely,  that  a  lontract  for  the  sale 
of  article.-'  then  existing  or  such  as  the 
vendor  in  the  ordinary  course  of  his  busi- 
ness manufactures  or  procures  for  the  gen- 
eral market,  whether  on  hand  at  the  time 
or  not,  is  a  contract  for  the  sale  of  goods, 
to  which  the  statute  applies.  But  on  the 
t)ther  hand,  if  the  goods  are  to  be  manu- 
factured  especially  for  the  purchaser,  and 


upon  his  Bpeclal  order,  and  not  for  the 
general  market,  the  case  Is  not  witliln  the 
statute.  Spencer  v.  Ccuie,  1  .Met.  2s;t. 
"The  distinction."  says  Chief  Justice 
Shaw,  in  Lamb  v.  Crafts.  12  Met.  :\:>.\.  "we 
believe  is  now  well  understood.  When  a 
person  stipulates  for  the  future  sale  of  ar- 
ticles, which  he  is  habitually  nuiKlng.  and 
which,  at  the  time,  are  not'  n;ade  or  lln- 
Ished,  it  is  essentially  a  contract  of  sale, 
and  not  a  contract  for  labor ;  otliirwlse, 
when  the  article  Is  macle  piiisuant  to  the 
agreement."  In  (iardner  v.  .loy,  !)  .Met. 
177,  a  contract  to  buy  a  certain  numlier  of 
boxes  of  candles  at  a  fixed  rate  per  pound, 
which  the  vendor  said  he  woulil  mantirac- 
ture  and  deliver  in  about  three  niontliH, 
was  held  to  beacoiitract  of  saleand  with- 
in the  statute.  To  the  same  general  effect 
are  Waterinnn  v.  Meigs,  4  Cush.  4'.)7,  and 
Clark  V.  Mchols,  107  Mass.  .".17.  it  is  true 
that  in  "the  inllnltely  various  shades  of 
different  contracts,"  there  is  soine  |)racti- 
cal  dilliculty  in  disposing  of  the  •(iiestionH 
that  arise  under  that  section  of  the  stat- 
ute, (icn.  Sts.  e.  10."),  §  ,">.  But  wi-  see  no 
ground  for  holding  tliat  there  is  aiii' iin- 
certaint.v  in  the  rule  its'lf.  On  the  contra- 
ry. Its  correctness  and  justice  are  clearly 
implied  or  expressly  allirii;eii  In  all  of  our 
decisions  upon  the  subject    matter.     It   Is 

I  proiier  tc  say  also  tliat  the  present  case 
is  a  much  stronger  one  than  Mixer  v. 
Ilowarth.  In  this  case,  the  cariiwge  was 
not  oiil.v  built  for  the  d?fenilant,  but  in 
conformity  in    some   resiiecls    with  his  dl- 

!  rcctions,  and  at  his  reipiest  was  marked 
with  his  initials.  It  was  neither  Intendeil 
nor  adapted  for  the  general  market.  K» 
we  are  by  no  lueaiis  jirepared  to  overrule 
the  decision  in  that  case,  we  must  there- 
fore hold  that  the  statute  of  frauds  does 
not  apply  to  the  contract  which  the  plain- 
tiff is  seeking  to  enforce  in  this  action. 

Independentl.v  of  that  statute,  and  la 
eases  to  which  it  does  not  appy.  it  is  well 
settled  that  as  between  tlie  immediate 
parties,  propert,\  in  personal  clint'.els  may 
pass  by  bargain  and  sale  without  actual 
delivery.  If  the  parlies  liave  agreed  upon 
thespecilic  thing  that  is  sold  and  the  price 
that  the  buyer  is  to  pay  for  it,  and  noth- 
ing remains"  to  be  done  but  that  the  buyer 
should  iiay  the  price  and  take  the  same 
thing,  the  property  passes  to  the  buyer, 
and  with  it  the  risk  of  loss  by  l!re  or  any 
other  accident.  Tlie  appropriation  of  the 
chattel  to  the  buyer  is  eiiuivalent.  forthat 
purpose,  to  delivery  by  the  seller.  Tlie 
assent  of  the  buyer  to  take  Ihespccllic 
chattel  is  equivalent  for  the  same  luirpose 
to  his  acceptance  of  possession.  Dixon  v. 
Yates,  5  B.  &  Ad.  .iia,  :!4n.  The  property 
niny  well  be  in  the  buyer,  though  the  right 
of  possession,  or  lien  for  the  price,  is  in 
the  seller.  There  could  in  fact  be  no  such 
lien  without  a  change  ot  ownership.  No 
man  can  be  s;iid  to  liavea  lien,  in  theprop- 
er  sense  ot  the  leriii.  upon  his  o»  n  proper- 
ty, and  the  seller's  lien  can  only  be  upon 
tiie  buyer's  property.  It  has  often  been 
decided"  that  nssiiiiipsit  for  the  price  of 
goods  bargained  and  sold  can  be  lualn- 
taine.l  where  tliea(M>ds  have  been  selected 
bv  the  Inner,  and  set  apart  for  him  by  the 
seller,  tlnnigh  not  actually  .lelivereil  to 
hliu,   and    where   nothing   n-maiim   to   bo 


350 


OODDAKl)  V.  UINNEY. 


done  e:^cept  tlint  the  liuyer  should  pay  the 
sgreod  price.  In  such  a  state  of  thiujis 
the  property  vests  in  liini,  and  with  it  the 
risk  of  any  accident  that  may  happen  to 
the  Roods  in  the  meantime.  Noy's  Max- 
ims, S'J.  2  Kent.  Com.  (12th  Ed.)  491,'. 
Blo.vani  v.  Sanders,  4  B.  &  (.".  i)41.  TadinR 
V.  Baxter.  G  B.  &  U.  3G().  Hinde  v.  White- 
house,  7  East,  571.  Macomlier  v.  Parker, 
13  Pick.  175,  183.  Morse  v.  Sherman,  100 
Mass.  430. 

In  the  present  case,  notliinp;  remained 
to  be  done  on  the  part  of  tlie  plaintiff. 
The  price  had  been  agreed  upon;  tlie  spe- 
cific chattel  had  been  finished  according 
to  order,  set  apart  and  appropriated  for 
the  defendant,  and  marked  with  his  ini- 
tials. The  plaintiff  had  not  undertaken 
to  deliver  it  elsewhere  than  on  his  own 
premises.    He  gave  notice  that  it  was  fin- 


ished, and  presented  his  liill  to  the  defen<l- 
ant,  who  promised  to  pay  it  soon.  He 
had  previously  re()uested  that  the  car- 
riage should  not  be  sold,  a  request  which 
substantially  is  equivalent  to  asking  the 
plaintiff  to  keep  it  for  him  when  finished. 
Without  contending  tluit  these  eiicuin- 
stnnces  amount  to  a  deliveiy  and  accept- 
ance within  the  statute  of  frauds,  tlie 
plaintiff  may  well  claim  that  enough  has 
been  done,  in  a  case  not  within  that  stat- 
ute, to  vest  the  general  ownership  in  the 
defendant,  and  to  cast  ui)on  him  the  risk 
of  loss  by  fire,  while  the  chattel  remained 
in  the  plaintiff's  possession. 

According  to  the  terms  of  the  reserva- 
tion, the  verdict  must  be  set  aside,  and 
judgment  entered  for  the  plaintiff. 

COLT  and  ENDICOTT,  J.f.,  absent. 


i 


GOMPERTZ  c.  I5AKTLETT. 


8^ 


GOMPERTZ  T.  BAUTLETT. 

(2  El.  &  Bl.  849.) 

Court  of  Queen's  Bench.    Xov.  14,  18.5.3. 

Action  for  nioiic'3-  hail  iinil  received. 
Pleii :  Never  indebted.  I.ssiie  thereon. 
On  the  trial,  before  Lord  Caniphell.  C.  .1., 
nt  the  Kittinir.s  at  (iuildhall  after  last 
Trinity  lerni,  it  appeared  that  the  defenrl- 
ant,  in  London,  Hold  to  the  plaintiff  a  hill 
of  excliatifje  puri)ortinR  to  lieilniwnat 
.Siei-ia  Leone  hy  .Jolly  &  Co..  of  that  plaee. 
on  Bellot  &  Co.,  of  London,  and  aecefHed 
hy  I'.ellot  &  Co..  payable  to  the  onler  of  a 
third  per.Mon  in  London.  The  instrument 
was  endorsed  in  blank  by  the  payee;  it 
was  iin.staniped ,  but  both  parties  be- 
lieved it  to  bo  a  foreicn  iiill  and  eonse 
fjiiently  to  reijuire  no  Htamji.  The  defend- 
ant  illii  nut  endorse  the  bill;  and  it  was  a 
sail'  without  reeonrse.  The  plaintiff  paid 
£sl.'»  to  the  defendant,  as  the  price  of  the 
bill,  vvliieh  was  handed  to  plaintiff;  and 
he,  in  Hke  manner,  sold  the  1)111  to  another 
person,  also  without  recourse.  Before 
the  bill  attaineil  maturity,  all  the  parties 
to  the  bill  became  bankrupt.  On  the 
holder  sei-kinK  to  prove  a^raiiiHt  the  estate 
of  the  acceptor,  it  was  discovered  that 
the  bill,  thouRh  bearing  the  uennino  sig- 
nature of  a  Sierr.-i  Leone  firm,  had,  in  fact 
been  drawn  by  one  of  the  partners  in  this 
kinK-<lom.  and  eonseiiuently  was  unavail- 
able for  wan  t  of  a  stamp.  The  commis- 
sioners in  bankrui)tcy  refused  to  allow  the 
proof.  The  holder  ilenianded  back  Irom 
the  plaintiff  tln^  price  paid  to  him:  and 
the  plaintiff,  under  threat  of  legal  proceed- 
ings, paid  him.  The  plaintiff  now  sought 
to  recover  from  the  defendant  £sl.'>,  the 
price  of  the  bill,  as  money  p.'iid  on  a  con- 
sideration which  had  faileii.  It  was  ad- 
mitted that  the  defendant,  at  the  time  of 
the  sale,  liona  fide  believed  the  bill  to  have 
been  drawn  at  .Sierra  Leone ;  and  neither 
fraud  nor  negligence  was  imputed  to  him. 
The  lord  chief  justice  directed  a  nonsuit, 
with  leave  to  move  to  enter  a  v^^rdict  for 
the  plaintiff. 

Petersdorff,  in  this  term,  obtained  a  rule 
nisi  aci'ordingly.  M.  Chambers  and  Pear- 
son now  showed  cause.  Petersdorff,  con- 
tra. 

Lonl  C.\MPnF,r>L,  C.  .f.— At  the  trial,  I 
was  impressed  with  the  consideration 
that  this  w;is  a  transaction  of  pure  sale, 
and  that  the  vendor  really  had  title  to 
the  bill  which  he  sold,  and  was  perfectiv 
ignoiant  of  the  latent  defect.  Besides, 
the  bill  would  probably  have  in  fact  been 
paid  had  the  parties  to  ii  continued  sol- 
vent: and  Oh  the  whole  I  was  then  iiK  lineil 
of  think  that  the  defect  was  n.erely  one  in 
the  (juality,  which  t  he  vendor  did  lioi  war- 1 
rant.  But,  now,  having  heard  the  argu- 
ment, 1  think  that  the  action  is  maintain- 
able, on  the  ground  t  ha  t  the  article  does  I 
not  answer  the  description  of  that  which 
was  sold,  viz.,  a  (oieign  bill.  There  was 
no  written  stnteuicnt  or  direct  assertion 
that  this  bill  was  drawn  at  Sierra  Leone;  | 
LAW  SAI.KS— -3 


but  it  purported  to  be  BO  drawn;  nnd  It 
must  be  taken  that  It  nas  Hold  b,'  th^ 
description  of  a  bill  drawn  at  Sierra 
Leone.  In  fart  it  was  drawn  in  London: 
and,  on  that  account,  it  could  not  be  en- 
forced. If  it  really  hail  been  a  foreign  bill, 
any  secret  defect  would  have  been  at  the 
risk  of  the  purchaser;  but  this  is  not  a 
case  in  whcli  an  article  answering  the  de- 
scri|)tion  by  which  it  is  sold  has  a  He<-ret 
defect,  but  one  in  which  the  article  i--  not 
of  the  kind  which  was  sold.  I  think, 
therefore,  that  the  money  jiaid  for  it  may 
be  recovered  as  paid  in  mistake  of  facts. 
The  law  is,  I  think,  accurately  laid  down 
in  the  passage  cited  from  Addison  on 
Contracts.  If.  Iieing  what  was  sold,  thf 
bill  was  valueles.-.  because  of  the  insol- 
vency of  the  parties, the  vendor  would  not 
be  answerable;  but  ho  isnnswerable  if  the 
bill  be  spurious.  .lones  v.  Kvde,  .'>  Taunt. 
4SN.  and  Young  v.  Cole,  .3  New  ("as.  7lM. 
7:iO,  are  strongly  in  point.  Young  v.  Cole 
is  indeed  a  very  strong  case  ;  for  the  things 
sold  there  as  Guatemala  bonds  were  In 
one  sense  of  the  words  (iuatemala  bonds; 
but  they  were  not  what  was  |)ro[essed  to 
be  sold,  viz..  bunds  binding  on  the  Guate- 
mala government.  The  case  is  precisely 
as  if  a  bar  was  sold  as  gold,  but  was  in 
fact  brass,  the  vendor  being  innocent.  In 
such  a  case  the  purchaser  may  recover. 

COLEHIDGE,  J.— I  am  of  thpsameopin- 
ion.  What  took  place  at  the  time  of  the 
sale  was  merely  that  the  vendor  did  not 
endorse  the  bill,  and  stipulated  in  effect 
that  this  should  be  a  sale  without  war- 
ranty. Tliat  being  so.  the  vendor  wa» 
not  bound  to  see  that  he  sold  a  bill  of 
good  quality,  or  to  answer  for  the  insf>l- 
vency  of  the  (inrlies  ;  but  the  vendee  is  stIU 
entitled  to  ha ve  an  article  answering  thp 
descrifjtion  of  that  which  he  bought. 
Here  he  bought,  as  a  foreign  toll,  what 
turns  out  not  lo  be  a  foreign  bill,  and 
therefore  valueless.  Common  justice  re- 
quires that  he  should  have  back  the  price. 


'  Erie,  J.,  had  gone  to  Clinmbors, 

•See  the  Digest,  lib.  xviii.  tit.  1.  De  Contrah. 
Emt.;  laws  It,  10.  11,  niiil  14,  where  the  sub- 
ject of  the  principal  ci!si»  is  discussol.  The 
civilians  seem  to  have  come  to  the  conclusion. 
"Si"  "aes  pro  aun>  vcneat  non  valet,"  aliler  "si 
auruni  quidom  fuerit,  doterius  autem  iiuam 
euitur  existimarct:  tunc  eniin  emiio  valet.' 


GOODWIN  c.  IIOLUnOOK. 


acr, 


GOODWIN  y.  HOLUUOOK. 

(4  Wend.  mi. I 

Supreme  Court  of  New  York.    May,  1830. 

Dftniirror  to  ileelaration.  On  the  20th 
Mfin-li,  IsKJ,  at  Au^cliu.^,  an  aKroeniont 
uniier  seal  waH  entereil  into  between  H. 
(ioodwin,  of  Atirclius  in  CayiiKn  county, 
and  J.  MatthowK.  of  Salinu  in  Onondana 
county,  wlieroby  (Joodwin  ngreed  to  hoII 
and  convey  unto  Matthews  all  hiH  rlKht, 
intercKt  and  claim  in  and  to  certain  wait 
workw.  desciilicd  as  8H!t  lot  No.  '.(;  and 
Matthews  nurccd  to  pay  for  the  same 
f  1,(100  in  tirwt  <|iialitv  OnondaRa  salt;  ^L'OO 
to  be  iiaid  on  the  Ist  October,  IslC,  $400 
on  the  Ist  October,  1H17,  and  the  residue 
in  one  year  thereafter,  with  interest  from 
the  1st" October,  ISIG.  He  further  agreed 
to  pack  all  the  salt  in  barrels  in  the  usual 
way  of  Hacking  salt,  the  biirrels  to  be  fur- 
nished by  (ioodwin  and  delivered  ut  the 
salt  works.  It  was  further  stipulated 
that  Matthews  should  take  possession 
within  three  days  from  the  date  of  the 
agreement,  and  that  the  writings  should 
be  executed  within  si.xtydays;  there  was 
also  a  sti|)ulation  in  relation  to  the  then 
occupants  of  the  lot.  On  the  27th  .Tune, 
IsKi.  the  time  for  conii)lelin«;  the  writings 
was  exlendi'd.  liy  an  en''orsement  on  the 
asrreement  si^jned  bv  (lOodwin  and  Mat- 
thews, to  the  Ist  October.  IsKi.  On  the 
Nth  April.  IMS.  Matthews  assigneil  nil  liis 
title  to  the  salt  Works  njireed  to  be  con- 
veyed by  (ioodwin  to  the  defendant  Hoi- 
brook,  in  consideration  whereof  llidbrook, 
by  an  instrument  under  seal,  bearing  date 
at  Salina  on  the  same  da.vaKMcd  to  make 
to  (ioodwin  the  payments  then  due,  an<t 
which  should  thereafter  becomedueon  the 
contract  lietween  (ioodwin  and  Matthews. 
In  February  term,  !>>.'!'.».  'ioodwin  com- 
menced a  suit  atrainst  llolbrook,  an<I  de- 
clare(l  nuainst  him  in  covenant.  The  dec- 
laration set  forth  that  on.  &c.,  an  article 
of  aKri'cment  was  entered  into  b.v  and 
between  (ioodwin  and  .Mat thews  wliereby 
.Matthews  aKreed  to  pay  to  (Joodwin  ?1,- 
000  in  tirst  (juality  Onondafra  salt,  specify- 
ing theproportions  and  times  of  payment, 
as  contained  in  the  asreenient;  that  on, 
&c..  .Matthews  assinned  the  ajireement  to 
Holbrook,  in  consideration  whereof  llol- 
brook covenanted  and  ayrreed  to  pay  all 
such  sums  of  money  as  were  then  due  anil 
owinu  by  .Matthews  to  (lood  win  upon  the 
said  agreement  thusassijined,  and  all  such 
sumsas  should  becomedue thereon.  Tlien 
follows  an  averment  that  at  the  time  of 
the  Bssijinment  of  the  afrreement  there 
was  due  to  (ioodwin  on  the  agreement 
$.'i(lO,  iiayable  in  salt,  after  which  follows 
the  breach.  The  defendant  prayeil  oyer 
of  the  instruments  declared  on,  which  be- 
ing reail,  he  put  iii  a  general  demurrer  to 
the  declaration. 

('.  P.  Kirklnnd,  for  plaintiff.  .1.  A.Spen- 
cer, for  defendant. 

MARCY,  J.— It  is  said  that  the  execu- 
tion of  the  writings  relntive  to  the  salt  lot 
was  a  condition  precedent  to  the  pay- 
ments to  be  made  by  the  defendant,  and 
tbat  tiie  declaration   Is  defective  io   not 


averring  that  this  was  done.  It  la  very 
evident,  from  an  inspertion  of  the  agree- 
ment,  that  the  covenant  for  the  convey- 
ance l)y  the  plaintiff  is  independent  of 
the  covenant  on  the  part  of  the  defend- 
ant, liy  the  first  agreement,  the  con- 
veyance was  to  lie  made  at  a  time  prior 
to  that  on  which  tlii>  cotislileration, 
or  any  part  of  it.  was  to  l)e  paid:  and. 
though  it  was  extended  afterwards  to 
a  time  when  a  portion  of  the  consider- 
ation became  payable,  there  Is  nothing  to 
show  that  the  payment  was  to  depend  on 
the  execiition  of  the  writings.  There 
woulil  have  been  more  reason  for  inferring 
such  an  intent  in  the  parties  if  the  pay- 
ment of  the  whole  consideiation  ami  the 
execution  of  the  writings  had  been  simul- 
taneous acts. 

The  plaintiff,  to  whom  thei)aynient  was 
to  be  made,  lived  at  Aurelins, "where  the 
covenants  were  entered  into,  ami  .Matth- 
ews, to  whoso  rights  and  liabilities  the 
defendant  hds  succeeded,  livcil  at  Salina, 
where  the  pren)iscs  contracted  for  were 
situated,  and  where  the  article  wl-.icli  was 
to  be  taken  as  payment  was  manufac- 
tured. 

It  will  be  observed  that  the  contract  in 
to  pay  one  thousand  ilollars  In  salt.  II 
the  payment  had  been  to  be  made  in  mon- 
c.v.  there  could  have  been  no  doubt  as  to 
the  place  of  performance,  it  would  have 
been  tlie  duty  of  the  defendant  to  seek  the 
l)lalnliff-<  in  order  to  make  the  (la.vment. 
Is  the  place  of  performing  the  contract 
changed  by  substituting  a  commodity  for 
money?  The  implied  place  of  performance 
is  sometimes  rliniiged  by  the  nature  of  the 
article  to  be  delivered.  If  u  merchant  or 
manufacturer  engages  to  pay  on  dem&nd 
in  the  articles  of  his  trade,  ami  no  place  Is 
specilied  in  the  contract,  the  store  of  the 
merchant  or  the  workshop  or  pb-re  of  de- 
posit of  the  fabrics  of  the  manufacturer 
is  the  place  where  the  payment  must  be 
demanded  before  an  action  accrues  for 
the  nonperformance  of  the  contract  (Chip, 
on  Cont.  2^.  11.)  It  Is  said  by  the  same  au- 
thor, that  "  if  a  note  of  hanil  be  given  for 
catl'e,  grain  or  other  portable  articles, 
and  no  place  of  payment  be  designated  In 
the  note.  t!ie  criditor",-)  place  of  residence 
is  the  place  of  pay  ment "( Id.  25.)  These 
two  positions  ma.v  seem  to  he  contradic- 
tory ;  but  ciiie  or  two  conslderatl<>ns  can 
not  fail  to  show  that  they  are  not  so. 
The  peculiar  circumstances  am)  course  of 
business  of  the  promissurs  in  the  hrst  case 
warrant  the  inference  that  the  parties  In- 
tended that  thearliclesshould  bedelivered 
at  the  promissors'  usual  place  of  making 
and  deliveringof  the  articles  sold  liy  them. 
The  engagement  is  that  the  articles  shall 
bedelivered  on  demand.  This  seems  to 
imply  that  the  creditor  must  go  to  the 
debtor  to  make  the  demand.  Iiefore  the 
latter  can  Ite  in  detault.  Hut  the  last 
proposition  suiMioses  the  i)lace  omitted, 
but  the  tiniefor  delivery  nxed.  It  presents 
a  case  like  the  one  umler  consideration, 
and  contains  the  rule  of  law  that  ought 
to  be  applied  to  it.  Salt  is  as  much  a 
portable  article  as  grain,  and  the  time  for 
the  delivery  of  It  in  this  case  being  speci- 
fied in  the  contract,  the  defendant's  en- 
gagement must  be  construed    to  l)e  for  Its 


356 


GOODWIN  V.  nOLBROOK. 


delivery  to  the  plaintiff  at  his  rtsidtnee  in 
Aurelius,  iinlesH  a  different  construction  is 
authorized  by  the  clause  relative  to  pack- 
inj;  the  salt  in  barrels  to  be  delivered  by 
plaintiff  at  the  salt  works  in  Salina.  This 
clause  does  not,  in  my  opinion,  weaken  — 
it  rather  strengthens  the  legal  inference 
that  Aurelius  was  the  place  of  delivery. 
Jf  the  barrels  were  to  befuinished  at  the 
place  where  the  salt  was  to  be  delivered, 
why  was  it  deemed  necessary  to  siiecify 
that  i)lace?  The  salt  was  to  be  packed  at 
the  place  of  mniiufacture;  this  act  neces- 
sarily was  to  precede  the  delivery,  but  it 
could  not  be  done  till  the  plaintiff  had  fur- 
nished the  barrels.  There  was  something: 
then  to  be  done  by  the  plaintiff  before  the 
delivery,  and  the  defendant  is  not  in  de- 
fault for  making  delivery  as  long  as  this 
act  remains  unperformed  by  the  plaintiff; 
it  does  not  appear  by  the  [ileadings  that 
it  was  ever  performed  by  him. 
But  it  is  said  that  what  relates  to  pack- 


ing and  furnishing  the  barrels  is  a  distinct 
agreement,  solely  for  the  benefit  of  the 
plaintiff,  and  that  he  was  at  liberty  to  dis- 
pense with  its  performance.  I  view  it  as 
a  part  of  the  contract,  and  I  do  not  know 
that  it  would  not  be  less  expensive  to  the 
defendant  to  pack  the  salt  in  barrels,  and 
deliver  it  in  them,  than  to  deliver  it  in 
bulk;  if  it  would  be  less  e.\[>ensive.  th;it 
I)art  of  the  agreement  was  beneficial  t() 
the  defendant  and  without  his  con.sciit 
the  plaintiff  could  not  di.s|)eMse  u  illi  it. 
But  whether  this  be  so  or  not  is  in  no  « ise 
material;  for  if  the  plaintiff  could  have 
dispensed  with  it,  the  record  does  not 
show  that  he  did  so;  and  1  hold  the  de- 
fendant excused  for  waiting  until  the 
|)laintiff  performed  the  act  which  neces- 
sarily preceded  the  delivery,  or  distinctly 
waived  the  part  of  the  agreement  relative 
to  that  act. 

.Judgment  on   demurrer  for  defendant, 
with  leave  for  plaintiff  to  amend. 


COULD  V.  i?oi:hoi:ois. 


359 


GOULD  V.  BOURGEOIS. 

(18  Atl.  Rep.  6^,  51  N.  J.  Law,  361.) 

Supreme  Court  of  New  Jersey.    June  17,  1889. 

Rule  to  show  cause. 

Error  to  circuit  court,  Atlantic  county; 
before  .lusticp  Rkkd. 

Argued  at  February  Term,  1889,  before 
I}easlky,  Chief  Justice,  and  Justices  De- 
PUK,  Van  Syckel,  and  Knapp.  , 

Learning  d:  Black,  for  tlie  rule.  D.  J. 
Pancuasl,  conlra. 

Depi'e,  J.  This  suit  was  upon  a  promis- 
sory note  made  by  the  defendant.  Thit  de- 
fense was  the  want  or  failure  of  considera- 
tion. The  city  counril  of  Holly  Reach  City 
proposed  to  build  a  hnakwater.  The  de- 
fendant was  an  applicant  for  a  contract  to 
do  the  work,  and  prepared  and  sent  to  the 
city  council  an  agreement  with  the  city  to 
that  effect.  Members  of  the  city  council  sent 
wonl  to  the  defendant  that  the  city  had  al- 
ready entered  into  a  contract  for  the  building 
of  the  breakwater  with  (!ould  <fc  Downs,  that 
these  parties  could  not  fulfill  their  contract, 
and  that,  if  the  defendant  would  make  a  sat- 
isfactory arrangeuient  with  (iould  &  Downs, 
the  city  would  give  him  the  contract.  The 
parties  thereupon  entered  into  negotiation, 
the  conclusion  of  which  was  a  contract  in 
writing  and  under  seal,  whereby  Gould  & 
Downs,  for  the  consideration  of  a  note  for 
8376  and  $500  in  city  bonds,  assigned  to  the 
defendant  "all  our  right,  title,  and  interest 
in  a  certain  contract  entered  into  by  the  au- 
thorities of  Holly  Beach  City  and  ourselves 
to  build  a  certain  bre:ikwater  ordered  built 
by  a  resolution  passed  .\pril  14,  1887."  Suh- 
seciuently,  the  city  council,  having  obtaine<l 
the  opinion  of  counsel  that  the  city  had  no 
power  to  build  the  breakwater,  refused  to 
ratify  the  arrangement  of  the  defendant  with 
Gould  <fe  Downs,  and  abandoned  the  jiroject 
of  constructing  the  work.  The  note  sued 
on  was  given  in  compliance  with  the  terms 
of  this  assignment.  There  was  no  pmot  of 
an  express  warranty  by  Gould  &  Downs  of 
the  validity  of  their  contract,  nor  any  evi- 
dence from  which  fraud,  either  in  represen- 
tation or  concealment  on  their  part,  could  be 
inferred.  The  power  of  the  city  to  make  the 
contract  was  not  mooted  until  after  these 
parlies  had  concluded  their  arrangement 
and  the  assignment  bad  been  made;  and,  if 
tlie  contract  was  invalid,  its  invalidity  arose 
fioui  the  city  charter,— a  public  act  equally 
within  the  knowledge  of  both  parlies.  'I'he 
defendant's  contention  was  that,  inasmuch  as 
there  was  a  sale  of  the  contract,  a  warranty 
that  the  contract  was  a  valid  contract  was  im- 
plied, and  that,  the  contract  being  ultra  vires 
on  the  part  of  the  city,  and  void,  the  considera- 
tion entirely  failed.  If  the  proposition  on 
which  the  defense  was  rested  be  sound  in 
law,  the  defense  was  appropriate  in  this 
suit.  The  doctrine  of  implied  warranty  of 
title  in  the  sale  of  goods  applies  as  well  to 


the  sale  of  a  chose  in  action,  and  extends  not 
merely  to  the  paper  on  which  the  chose  in 
action  is  written,  but  embraces  also  tlie  va- 
lidity of  the  right  purported  to  be  transferred. 
Wood  V.  Sheldon,  42  N'.  J.  Law,  421.  Nor 
is  there  anything  in  the  nature  of  the  alleged 
infirmity  of  the  contract  that  woidd  bar  the 
defense.  In  the  ordinary  case  of  a  suit  on  a 
breach  of  warranty  of  title  the  validity  of  the 
vendor's  title  against  the  adverse  claimant 
is  triable,  if  the  purchaser  has  in  f.ict  lost 
title,  although  the  transactions  which  deter- 
mine the  vendor's  title  are  res  itiier  alios 
add.  If  the  contract  wliich  was  the  sul>- 
ject-matter  of  the  assignment  was  in  fact 
ultra  vires,  a  foundation  was  laid  for  this 
defense,  the  city  having  repudiated  the  con- 
tract in  limine  on  that  ground. 

The  validity  of  the  defensp  offered  and  over- 
ruled depends  upon  the  fundamental  propo- 
sition whether,  under  the  circumstances  of 
this  sale,  a  warranty  of  title  is  implied  in 
law.  The  theory  on  which  a  warranty  of 
title  is  implied  upon  tlie  sale  of  personal 
projierty  is  that  the  act  of  selling  is  an  af- 
firmation of  title.  Theearlier  English  cjises, 
of  which   Medina  v.  Stoiighton,  1  Salk.  210. 

1  Ld.  Kay;ji.  5'J3,  is  a  type,  adopted  a  dis- 
tinction between  a  sale  by  a  vendor  who  was 
in  possession  and  a  sale  where  tlie  chattel 
was  in  the  possession  of  a  thiril  person;  an- 
nexing a  warranty  of  title  to  the  former,  and 
excluding  it  in  the  latter.  In  the  celebrated 
case  of  I'asley  v.  Freeman,  3  Term  11.  51, 
liULLEK,  J.,  repudiated  this  distinction. 
Speaking  of  Medina  v.  Stoughton,  this 
learned  ju<lge  said  that  the  distinction  did 
not  apjiear  in  the  report  of  the  case  by  Lord 
Kaymond,  and  he  a<lds:  "If  an  allirmation 
at  the  time  of  the  sale  be  a  warranty,  I  can- 
not feel  a  distinction  between  the  vendor's 
being  in  or  out  of  possession.  The  thing  is 
bouglit  of  him,  anil  in  consequence  of  his 
assertion;  and,  if  there  be  any  dilTerence,  it 
seems  to  me  that  the  case  is  strongest  ai;ainst 
the  vendor  when  he  is  out  of  possession,  be- 
cause then  the  vendee  has  nothing  but  the 
warranty  to  rely  on."  Nevertheless  the  En- 
glish courts  continue  to  recogiii/o  the  dis- 
tinction, with  its  Incidents,  as  adopted  in 
Medina  v.  Stoughton,  to  some  extent,  at 
least  so  far  as  to  annex  the  incident  of  an 
implied  warranty  of  title  on  a  .sale  by  a  ven- 
dor in  possession.  Later  decisions  have 
placed  the  whole  subject  of  implied  warranty 
of  title  on  a  more  reasonable  basis.  .Mr. 
Benjamin,  in  his  Treatise  on  Sales,  after  :t 
full  examination  and  discussion  of  (he  late 
English  cases,  states  the  rule  in  force  in 
England  at  this  time  in  the  lollowiiig  terms: 
"A  sale  of  personal  chattels  iin|dies  an  allir- 
niation  by  the  vendor  that  the  chattel  is  his, 
and  therefore  he  wanaiils  the  title,  unless  it 
be  show  n  by  the  fads  and  circumstances  of 
the  sale  that  the  vendor  did  not  intend  to  as- 
sert owneiship,  but  only  to  transfer  such  in- 
terest as  he  might  have  in  the  chattel  sold." 

2  Benj.  Sahs.  (forbin's  Kd.)  g^  '.•45-it(>l. 
In  this  country  llio  distinction  between  sales 


360 


GOULD  V.  BOURGEOIS. 


where  the  vendor  is  in  possession  and  wliere 
lie  is  out  of  possession,  witli  respect  to  im- 
plied warranty  of  title,  has  been   generally 
recoiinized;  but  the  tendency  of  later  decis- 
ions is  against  the  recognition  of  such  a  dis- 
tinction, and  favoralile  to  the   moilorii   En- 
glish rule.     Id.  §  902,  note  21.     Bid.  War. 
§§  246,  247.     The  American  editor  of  the 
ninth  edition  of  Smith's  Leading  Cases,  in 
the  note  to  Chandelor  v.  Loptis,  after  citing 
the  cases  in   this   country  which  have  held 
that  the  rule  of   caveat  empiur  applies   to 
sales  where  the  vendor  is  out  of  possession, 
remarks  that  in  most  of  theiu  what  was  said 
on  that  point  was  obiter  dicla,  and  observes 
"that  there  seems  no  reason  why,  in  every 
case  where  the  vendor  purixuts  to  sell  an  ab- 
solute and  perfect  title,  he  should  not  be  held 
to   warrant  it."     1   Smith,  Lead.  Cas.   (Ed- 
son's  Ed.)  344.     In  ^Vo()d  v.  Slieldon,  supra, 
Chief  Justice  Bi;asli:v,    in    delivering   the 
opinion  of  the  court,  adopted,  in  terms,  the 
rule  stated   by  Mr.  Benjamin,  and   made  it 
the  foundation    of    decision.     The    precise 
question  now  under  discussion  did  not  then 
arise.     In  Eicliholz  v.  Bannister,  17  C.  B.  (N. 
S.)  708-721,  EiiLi:,  C.  J.,  said:    "I  consiiler 
it  to  be  clear   upim   the  ancient  authorities 
that,  if  the  vendor  of  a  chattel   by  word  or 
conduct  gives  the  purchaser  to  understand 
that  he  is  the  owner,  tliat  tacit  representa- 
tion forms  part  of  the  contract;  and  that  if 
lie  is  not  the  owner  his  contract  is  broken. 
*     *     *    In  alujost  all  the  transactions  of 
sale  in  common  life,  t!ie  seller,  by  the  very 
act  of  selling,  holds  out  to  the  buyer  that  he 
is  the  owner  of  the  article  lie  offers  for  sale." 
In  that  case  it  was  held  that  on  the  sale  of 
goods  in  an  open  shop  or  wareliouse,  in  the 
ordinary  course  of  business,  a  warranty  of 
title  was  implied;  but  there  is  a  line  of  En- 
glish cases  holding  that,  where  the  facts  and 
circumstances  show  that  the  |)ur[)ose  of  the 
sale,  as  it  must  have  been  understood  by  the 
jiarties  at  the  time,  was  not  to  convey  an  ab- 
.solute  and  indefeasible  title,  but  oidy  to  trans- 
fer the  title  or  interest  of  tlie  vendor,   no 
warranty  of  title  will    be  imjilied.     In  this 
proposition  the  fact  that  the  vendor  is  in  or 
out  of  possession   i-;  onlv  a  circninstance  of 
more  or  less  weight,  according  to  the  nat- 
ure   and    circNnistunces    of    the    particular 
transaction.     Thus   in   Morley  v.  Attenbor- 
ough,   3   Exch.   5U0,  the    holding    was    tliat 
on  a  sale  by  a  pawnbroker  at  pulilic  auction 
of    goods    pledged    to    him    in    the    way   of 
business    tliere    was    no    implied    warranty 
of  absolute  litle,  tije  undeitaking  of  the  ven- 
dor being  only  that  the  subject  of  the  sale 
was  a  pledge,  and  irredeemable  by  the  pledge- 
or.     In   Chapman   v.  Speller,  14  Q.  B.  621, 
the  defendant   bought   goods  at  a  sheriff's 
sale  for  £18.     The  plaintiff,  who  was  pres- 
ent at  the  sheriff's  sale,  bought  of  the  de- 
fendant his   bargain  for    £23.     The    plain- 
tiff was  afterwards  forced   to  give  up   the 
goods    to   the    real   owner.     He   then    sued 
the  defendant,  alleging  a  warranty  of  title. 
The  court  held   that   there  was   no  implied 


warranty  of  title  nor  failureof  consideration; 
that  tlie  plaintiff  paid  the  tlclendant,  not  for 
the  goods,  but  for  the  right,  title,  and  inter- 
est the  latter  had  acquired  by  his  purchase, 
and  that  this  consideration  had  not  failed. 
In  Ba;;ueley  v.  Ilawley,  L.  11.  2  0.  P.  625,  a 
like  decision  was  made,  where  the  defendant 
resold  to  the  plaintiff  a  boiler  the  former  had 
bought  at  a  sale  under  a  distress  for  poor- 
rates,  the  plaintiff  having  knowledge  at  the 
time  oT  his  purchase  that  the  defendant  had 
bought  it  at  sucdi  sale.  In  Hall  v.  Conder, 
2  C.  B.  (N.  S.)  22,  the  plaintiff,  by  an  agree- 
ment in  writing  by  which,  after  reciling  that 
he  had  invented  a  method  of  preventing 
boiler  explosions,  and  had  obtained  a  jiatent 
therefor  within  the  L'niled  Kingdom,  trans- 
ferred to  the  defendant  "the  one-half  of  the 
English  i)iitent"  for  a  consideration  to  be 
I)aid.  In  a  suit,  to  recover  the  consideration 
thedefcndant )  leaded  that  the  invention  was 
wholly  worthless,  and  of  no  jniblic  utility  or 
advantage  whatever,  and  that  the  plaintiff 
was  not  the  true  and  first  inventor  thereof. 
On  demurrer  the  plea  was  held  bad,  for  that, 
in  the  absence  of  any  allegation  of  fraud,  it 
must  he  assumed  that  the  plaintiff  was  an 
inventor,  and  there  was  no  warranty,  ex- 
press or  implied,  either  that  he  was  the  true 
and  tirst  inventor  within  tlie  statute  of  James, 
or  that  the  invention  was  useful  or  new;  but 
that  the  contract  was  for  the  sale  of  the  i)at- 
ent,  such  as  it  was,  each  party  having  equal 
means  of  ascertaining  its  value,  and  each 
acting  on  his  own  jud,'ment.  A  like  decis- 
ion was  made  in  Smith  v.Xeale,  2  C.  B.  (N. 
S.)  67. 

Chief  Justice  Eiile,  in  his  opinion  in  Eich- 
holz  V.  Bannister,  descrilies  Morley  v.  At- 
tenborough,  Chapman  v.  Speller,  and  Hall  v. 
Conder,  as  belonging  to  the  class  of  cases 
where  the  conduct  of  the  seller  expresses,  <it 
the  time  of  the  contract,  that  he  merely  con- 
tracts to  sell  such  title  as  he  himself  has  in  the 
thing.  The  opinion  is  valuable,  in  that,  while 
it  rescues  the  common-law  rule  of  implied 
wananty  of  title  from  the  assaults  of  distin- 
guished judges  who  held  that  caoeat  emptor 
a|iplied  to  sales  in  all  cases,  and  that  in  the 
absence  of  express  warranty  or  fraud  the 
purchaser  was  remediless,  it  also  placed  the 
rule  under  the  just  limitation  thaC  it  should 
not  apply  where  the  circumstances  showed 
that  the  sale  purported  to  be  only  a  transfer 
of  the  vendor's  title.  Expressions  such  as 
"if  a  man  sells  goods  as  his  own,  and  the 
title  is  deficient,  he  is  liable  to  make  good 
the  loss,"  (2  Bl.  Coinm.  4.51.)  or  "if  he  sells 
as  Ills  own,  and  not  as  the  agent  of  another, 
and  for  a  fair  price,  he  is  uii.ierslood  to  war- 
rant the  title."  (2  Kent,  Comm.  478.) — as  a 
statement  of  the  principle  on  which  the  doc- 
trine of  implied  warranty  of  title  rests,  is  not 
inconsistent  with  the  principle  adopted  by 
Chief  Justice  EuLE.  Stating  the  principlein 
the  negative  form  adopted  in  Morley  v.  At- 
tenborough,  that  there  is  no  undertaking  by 
the  vendor  for  title  unless  there  be  an  ex- 
press warranty  of  title,  or  an  equivalent  to  it 


GOULD  %}.  BOUUGEOIS. 


861 


by  (leclaiat  on  or  condiipt,  affects  only  the 
Older  of  proof.  It  whs  nonctMlcil  in  tint  case 
tliat  tlie  pawnbroker  siliiiig  his  i;i)0  Is  iimler- 
took  tliat  tlipy  had  l)i  en  jjli'iiiji'd.  ami  wpio 
irredeemable  by  the  pledgeor,  and  if  it  be  as- 
.siiiued,  as  X  lliiiik  il  luiibL  be,  that  the  act  of 
selling  amounts  to  an  allirnialion  of  title  of 
some  SDrt,  but  that  its  force  and  effect  may 
be  explained,  qualilied,  or  entirely  overcome 
by  the  laclsand  ciicumstaiices  connected  wiih 
the  transaction,  the  difference  between  Mot- 
ley V.  Altenborough  and  Kichholz  v.  Bannis- 
ter will  rarely  be  of  any  pralical  impoitance. 
The  liniitaliim  above  mentioned  upon  the 
doctrine  that  the  act  of  selling  is  an  allirma- 
tion  of  title  has  hi  en  ad()|iled  in  this  state. 
In  IJogert  v.  Chrystie,  24  X.  J.  Law.  57  00, 
this  court  held  that  the  general  rule  that  the 
vendor  of  goods  having  posse-ision,  and  sell- 
ing them  as  his  owu,  is  bound  in  law  to  war- 
rant the  title  to  the  vendee,  did  not  apply 
where  the  venilor  sells  with  notice  of  an  out- 
standing interest  in  a  third  [lartv,  and  sub- 
ject to  that  int.rest.  In  ll<iagla'nd  v.  Hall, 
;58  N.  .1.  Law,  ;J51,  the  vendor  agreed  in 
writing  to  assign  a  lease  he  held  upon  cer- 
tain premises,  and  to  sell  and  transfer  goods 
and  chattels  mentioned  in  a  schedule.  Tlie 
premises  were  a  licensed  inn  and  tavern,  and 
in  the  scliedule  of  the  articles  sold  were 
enumerated  "the  licenses  ol  the  house. "  The 
law  under  which  the  license  was  granted  pro- 
hibited the  transfer  of  a  license,  and  in  the 
purchaser's  hands  it  would  be  void  and  value- 
less. The  court  held  that  that  circumstance 
;lid  not  justify  the  purchaser  in  withdrawing 
from  his  contract;  that  there  was  no  war- 
ranty by  tlie  vendor  that  the  license,  when 
assigned,  would  be  of  any  value  to  the  pur- 
chaser; and  that  the  latter,  having  obtained 
by  the  :issigiiment  what  lie  had  bargained 
lor,  could  nut  annul  his  contract  unless  he 
showed  fraud  or  inisiepiesentation  with  re- 
spect to  the  subject-uialler  of  the  contract. 
In  Dank  v.  Trust  Co.,  Vl-'i  ilass.  o^JO,  the  de- 
fendant had  a  contract  with  B.,  uled^in"  to 


liim  certain  toba'-co,  in  which  it  was  recited 
tiiat  the  tobacco  was  B.'s  own  property,  and 
free  from  all  incumhranc  s,  and  made  an  iis- 
signnient  to  the  plaintilT  "of  all  his  right, 
title,  and  interest  in  and  under  the  contract, 
with  all  the  jiioperty  therein  mentioned." 
The  tobacco  was  then  in  the  defendant's  pos- 
session, and  was  delivered  by  him  to  the 
[ilaintiff.  Afterwards  a  third  person  de- 
manded and  recovered  of  the  plaintiff  part  of 
the  tobacco  as  his  property,  which  had  been 
pledged  to  the  clefendant  without  i  ight.  The 
plaintiff  then  sued  the  defeii.lant  on  an  al- 
leged implied  warranty  of  title.  The  court 
ruled  adversely  to  the  plaintiff's  claim.  In 
the  opinion  the  court  said  that  the  written 
assigniui-nt  did  not  purport  to  be  a  sale  of 
the  giiols,  but  of  all  the  defendant's  right 
under  the  contract,  and  its  obvious  purpose 
was  to  substitute  the  plaintiff  in  the  place  of 
the  original  pledgee,  and  that  the  fact  that  at 
the  time  of  the  transfer  to  the  plaintiff  the 
goods  were  in  the  actual  possession  of  the 
defendant  did  not  vary  the  case. 

In  the  case  in  hand  the  circumstances  con- 
nected with  the  assignment,  independent  of 
the  words  "all  our  right,  title,  and  interest," 
etc.,  contained  in  it,  preclude  the  implication 
of  a  warr.mty  of  the  validity  of  the  contract. 
Taken  in  connection  with  the  words  of  the 
assignment,  the  intention  of  the  parties  is  free 
from  doubt. 

The  contention  that  the  plaintiff  was  in 
fault  in  that  he  made  no  delivery  of  the  con- 
tract to  the  defendant  is  without  substance. 
The  contract  was  neither  produced  at  the 
negotiation  b-tween  the  parties,  nor  was  it 
required.  The  transaction  was  the  purchase 
of  tJoiild  &  Downs' interest  to  consummate 
an  arrangement  whereliy  those  parties  were 
to  be  got  rid  of,  that  the  city  might  give  the 
defendant  a  contract.  The  defen<lant  ob- 
tained by  the  a.ssignment  ail  he  bargained 
for.  The  defense  was  properly  overruled, 
and  the  rule  to  show  cause  should  be  dis- 
charged. 


GOULD  V.  STEIN. 


86ff 


GOULD  et  al.  v.  STEIN  et  al. 

(22  N.  E.  Rep.  47,  149  Mass.  570.) 

Supreme  Judicial  Court  of  Massachusetta. 
Suffolk.     Sept.  4,  181^9. 

Exceptions  from  superior  court,  Suffolk 
county;  Houkkt  C.  Piim.vn,  Judge. 

Action    by    Henry    A.   (lould   and   others 
against  Abe  Stein  and  otliers  lor  brcadi  of  i 
warranty    on    tlie    sale   of    certain  rubber.  1 
Judgment  for  plaintiffs.   Defendants  except. 

/.  /?.  Warner  and  H.  E.  Warner,  for 
plaintiffs.  ./.  H.  Dougherty  and  (J.  A.  Kiny, 
for  defendants.  i 

C.  Allen,  .J.     The  determination  of  this 
case   dejiends   upon    tlie   construction  to  be 
given  to  the  bonglit  and  sold   notes,  which 
were  similar  in  their  terms.     It  does  not  ad- 
mit of  doubt  that  these  notes  were  intended 
to  express  the  terms  of  tlie  sale.     They  were 
carefully  prepared  and  were  read  to  the  par- 
ties line  by  line,  as  they  were  written.     Of 
course  all  the  existing  circumstances  may  be 
looked  at,  but  the  contract  of  the  parlies  is 
to  be  found  in  what  was  thus  written,  when  j 
re.ad   in   the   light  of  those  circumstances. 
The  goods  re.spccting  which  the  controversy 
has  arisen  were  a  certain  lot  of  rubber  which 
the  defendants  had  on  liand,  and  which  could 
be  identilied.     The  transaction  was  a  present 
sale,  and  not  an  agreement  to  deliver  rubber 
in  the  future.     The  defendants  now  contend 
that  the  contract  was  executory,  and  that,  if 
there  was  any  warranty,  there  was  none  which 
survived  the  acceptance  of  the  goods  by  the 
plaintiffs;  but  the  argument  that  it  was  not  an 
executed  present  sale  finds  no  support  in  the 
bill  of  exceptions,  and  no  such  point  was  taken 
at  the  trial ;  and  there  is  no  occasion  to  consid- 
er the  further  question  whether,  in  case  of  an 
execulory  agreement  to  sell,  a  warranty  will 
survive  the  acceptance  of  the  goods.     The 
bought  note,  which  the  plaintiffs  put  in  evi- 
dence, was  of  "148  bales  Ceara  scrap  rub- 
ber,   as  per  samples,  viz.,  46  bales  of  first 
quality    marked   'A;'    102   bales   of   second 
quality."     The   controversy  relates  only  to 
the  102  bales.     It  appeared  that  there  was  no 
exact  standard  by  which  the  grade  of  rubbei 
could  be  hxed,  but  that  it  was  a  matter  of 
judsjment.     The  court  also  found  that  Ceara 
rubber  of  second  quality  is   well  known  in 
the  market  as  distinct  from  a  third  or  inferior 
grade;  and  there  was  evidence  which  well 
warranted  this  linding.     The  parties  in  their 
contiact  recognized  the  existence  of  dilferent 
grades  or  ciualities,  though  all  of  the  rubber 
properly  classilied  as  of  lirst  quality  or  of  sec- 
ond <iuality  might  nut  be  of  an  exactly  uni- 
form standard  nr  grade. 

The  plainlilfs  at  the  trial  claimed  damaces 
merely  on  the  ground  that  the  IU2  l)ales 
were  not  of  second  quality,  and  made  no 
claim  of  inferiority  to  the  samples  shown,  as 
a  distinct  ground,  but  waived  all  claim 
founded  on  tlie  exhibition  of  samples,  and 
the  court  found  dama.ces  for  the  ulaintllTs 


solely  on   tlie   ground  "that   the  defendant* 
failed  to  deliver  rubbei  of  the  second  quality; 
ruling  that  the  broker's  note  contained  an  ab- 
solute warranty  of  second  quality  rubber.    If 
this  ruling  was  right,  it  disposes  of  the  defend- 
ants' second  and  third  requests  for  instruc- 
tions. The  general  rule  is  familiar  and  admit- 
ted that  a  sale  of  goods  by  a  particular  descrip- 
tion imports  a  warranty  that  the  gooils  are 
of  that  description,     llenshuw  v.  Kobins,  9 
Mete.  83;  Harrington   v.  Siiiilh.    138   Ma,ss. 
92;  White  v.  .Miller.  71    N.  Y.  118;  Osgood 
V.  Lewis,  2  Har.  &  (i.  4%:  Randall  v.  New- 
son,  L.  K.  2  ti.  H.  Div.  1(»2;  Jones  v.  Just. 
L.  K.  :3  0.  B.  197;  Josling  v.  Kingsford,  13 
C.  ]i.  (N.  S.)  447;  Howes  v.  Shand,  L.  U.  2 
App.   Cas.  455.     And   where  goods  are  de- 
scribed  on   a  sale  as  of  a  certain  quality, 
which  is  well  known  in  the  maikct  ns  indi- 
cating goods  of  a  distinct,  though  not  abso- 
lutely uniform,   grade  or  standard,   tlie  de- 
scription imports  a  warranty  that  the  goods 
are  of  that  grade  orstandard.     In  such  cases, 
the  words  denoting  the  grade  or  quality  of 
the  goods  are   not  to  be  treated  as  merely 
words    of   general  commendation,   but  they 
are  held  to  be  words  having  a  specific  com- 
mercial signification.     Thus,  in  Hastings  v. 
Loverinff,  2  T*iek.  214.  the  words,  in  n  sale- 
note,  "Sold  Mr.  E.  T.  Hastings  2,000  gal- 
lons prime  quality  winter   oil,"   were    held 
to    amount    to    a  warranty  that  the   article 
sold    agreed   with    the    description:    and    in 
Hensliaw    v.    Kobins,    9    Mete.    S7,    it    was 
said   that   the   doctrine    laid   down   in  that 
case  has  ever  since  been   considered  as  the 
settled   law   in  this  commonwealth.     So   in 
Chisholm  v.  I'roudfoot,  15  U.  C.  (J.  B.  203, 
it  was    held    that  where  a  manufacturer  of 
Hour  marked   it  as  of  a  particular  quality, 
viz.,  "Trafalgar  Mills  Extra  Superhne,"  it 
amounted  to  a  warranty  of  its  being  of  such 
a  (juality.     A  similar  doctrine  may  be  found 
in  llogins  /.  I'lympton,  11  Tick.  97;  Winsor 
V.  Lombard,  18  I'ick.  57,  d";    Forcheimer  v. 
Stewart,  05  Iowa,  593,  22  N.  \V.  Kep.  88ti; 
Mader  v.   Jones,   1   N.   S.  Law   H.  82.     In 
Gardner  v.  I^iiie,  9  Allen,  492,  12  Allen,  39, 
it  appeareil  that  thest  itutes  provided  for  the 
preparation,  division  into  different  qualities, 
packing,  inspecting,  and  branding  of  mack- 
erel, and  it  was  held  that  if  a  certain  number 
of  barrels  of  No.  1  mackerel  were  sold,  and  by 
mistake  barrels  of  No.  3  mackerel  were  deliv- 
ered, no  title  passed  to  the  purchaser,  and 
;  that  the  barrels  of  No.  3  mackerel  thus  de- 
livered by  mistake  mij:ht  beattacheil  jusprop- 
;  erty  of  the  vendor,  anil   that  each  dilferent 
quality,  after  being  thus  prepareil  for  mar- 
ket, was  to  be  regarded  as  a  different  kind 
of  merchandise,  so  tliat  no  title  passe<l  to  Iho 
vendee;  there  being  no  assent  on  the  part  of 
the  vendee  to  take  the  No.  3  m  ickerel  in 
place  of  those  which  he  agreed  to  buy. 

Now,  if  the  words  ";i3  jier  samples"  liad 
not  been  in  theboiight  note,  it  would  be  quite 
jilain  that  the  present  ciise  would  fall  within 
the  ordinarv  rules  above  given.  But  tlie  in- 
sertion of  those   words  raises  the  inquiry 


-364 


GOULD  V.  STEIN. 


whether  they  limit  the  implied  WMiianty  of 
the  vendor,  so  tliat  if  the  rubl)er  sold  was 
equal  in  quality  to  the  sample  he  would  be 
exonerated  from  liability,  tliongli  it  was  not 
entitled  to  be  classed  as  of  tlie  second  quality. 
If  no  other  meaning  could  be  given  to  tlie 
words  "as  per  samples"  except  that  they 
alone  were  to  be  considered  as  showing  the 
tiuality  of  rubber  to  be  delivered,  tlie  argu- 
ment in  favor  of  the  defendants'  view  would 
be  irresistible.  .So  if  there  was  a  plain  and 
necessary  inconsistency  between  the  two  de- 
scriptions of  the  rubber,  it  might  perhaps  be 
succe-sf  uUy  contended  that  the  vendor's  ob- 
ligation was  only  to  deliver  rubber  which 
would  conform  to  the  inferior  quality  de- 
scribed; that  is  to  say,  that  in  case  of  such 
inconsistency,  the  words  "as  per  samples" 
should  prevail,  and  the  words  "of  second 
quality"  be  rejected.  If  it  were  to  be  held 
that  the  vendor's  obligation  was  fulfilled  by 
delivering  rul^ber  of  a  quality  equal  to  the 
samples,  though  it  was  not  of  the  second 
quality,  then  the  words  "of  second  quality" 
would  mean  nothing,  or  they  would  be  over- 
borne by  the  words  "as  jier  samjiles."  lUit 
if  it  is  found  that  tlie  bought  note  admits  of 
a  reasonable  construction  liy  wliich  a  proper 
■significance  can  be  given  both  to  the  words 
"as  per  samples"  and  also  to  the  words  "of 
second  quality,"  there  will  be  no  occasion  to 
disregard  either.  Oases  are  to  be  found  in 
the  books  where  such  a  construction  ha^ 
oeen  given  to  contracts  of  s.de.  Thus,  iu 
Whitney  v.  Boardman,  118  Mass.  242,  a  sale 
of  Cawnpore  bulTalo  hides,  with  all  faults, 
was  held  to  mean  with  such  faults  or  de- 
fects as  the  ai  tide  sold  might  have,  retaining 
still  its  character  and  identity  as  the  article 
described:  and  the  court  cited  witli  approval 
the  case  of  Shepherd  v.  Kain,  5  Harn.  &,  Aid. 
240,  where  there  was  a  sale  of  .'i  ropnpr-fast- 
ened  vessel,  to  be  taken  "with  all  faults, 
without  allowance  for  any  defects  whatso- 
ever," and  this  was  held  to  mean  only  all 
faults  which  a  copper-fastened  ve.-sel  might 
have,  the  court  saying  I  v  way  of  illustration: 
"Suppose  a  sdver  service  sold  with  all  faults, 
and  it  turns  out  to  be  plated. "  So,  in  Nichol 
V.  Godts,  10  Exch.  191,  an  agreement  for  the 
sale  and  delivery  of  certain  oil,  described  as 
"foreign  refined  rape  oil,  warranted  only 
equal  to  samples,"  was  held  to  be  not  com- 
plied with  by  the  tender  of  oil  which  was  not 
foreign  refined  rape  oil,  although  it  might 
be  equal  to  the  quality  of  the  samples.  The 
decision  of  this  case  lias  stood  in  England, 
though  not  without  sor.ie  questioning  at  the 
bar.  See  Wieler  v.  Schilizzi,  17  0.  B.  619; 
Josling  V.  Kingsford,  13  C.  B.  (N.  S.)  447: 
Mody  V.  Gregson,  L.  K.  4  Exch.  49;  Jones 
V.  Just,  L.  R.  3  Q.  B.  197;  Randall  v.  New- 
son,  L.  R.  2  Q.  B.  Div.  102.  In  the  present 
case,  by  a  fair  and  reasonable  construction 
of  the  bought  note,  effect  can  be  given  to 
both  of  the  phrases  used  to  describe  the  rub- 


ber. Construed  thus,  the  article  sold  was 
102  bales  of  Ccara  rubber,  of  the  second 
quality,  and  as  good  as  the  sanqiles.  The 
rublier  delivered  was  in  fact  Ceara  rubber. 
There  was  no  question  that  it  was  of  the 
right  kind;  but  it  was  not  of  the  second 
quality.  There  is  no  necessity  to  disre^'ard 
the  words  describing  the  rubber  as  of  the 
second  quality.  They  signified  a  distinct 
and  well-known,  though  nut  absolutely  uni- 
form, grade  of  rubber.  There  was  no  exact 
standard  or  dividing  line  betwer-u  rulilier  of 
the  second  quality  and  of  the  third  quality, 
any  more  tlian  there  is  between  daylight  and 
darkness.  But  nevertheless  a  decision  may 
be  reached,  and  it  may  be  easy  to  reach  it  in 
a  particular  case,  that  certain  rubber  is  or  is 
not  of  the  second  quality.  This  general  desig- 
nation being  given,  the  specification  "as  per 
samples"  being  also  included  in  the  note,  the 
rubljer  must  also  be  equal  to  the  samples.  It 
must  be  rubber  of  the  second  quality,  and  it 
must  be  equal  to  the  samples.  If  it  fails  in 
either  particular,  it  is  of  no  consequence  that 
it  conforms  to  the  othi  ■•  particular.  There 
is  no  inconsistency  in  such  a  twofold  war- 
ranty; and,  this  rubber  having  been  found 
to  be  not  of  the  second  quality,  the  warranty 
was  broken,  without  legard  to  the  question 
whether  or  not  it  was  e(|ual  to  the  samples. 

The  fact  that  the  plaintiffs  had  an  oppor- 
tunity to  examine  the  rubber,  and  actually 
made  such  examination  as  they  wished,  will  ■ 
not  necessarily  do  away  with  the  effect  of  the 
warranty.  The  plaintiffs  were  not  bound  to 
exercise  their  skill,  having  a  warranty.  They 
might  well  rely  on  the  description  of  the  rub- 
ber, if  they  were  content  to  accept  rubber 
which  should  conform  to  that  description. 
Henshaw  v.  Robins,  9  Mete.  83;  Jones  v. 
Just,  L.  R.  3  Q.  B.  197.  And  the  exhiljition 
of  a  sample  is  of  no  greater  effect  than  the 
giving  of  an  op|  ortunity  to  inspect  the  goo  Is 
in  bulk.  Notwithstanding  tlie  sample  or  the 
inspection,  it  is  an  implied  term  of  the  con- 
tract tiiat  the  goods  shall  reasonablv  answer 
the  description  given,  in  its  commercial  sense. 
Druinniond  v.  Van  Ingen,  L.  R.  12  App. 
Oas.  284;  Mody  v.  Gregson,  L.  R.  4  Exch. 
49;  Nichol  v.  Godts,  10  Exch.  191.  In  the 
two  former  of  these  cases  it  was  held  that 
there  might  be,  and  that  under  the  circum- 
stances then  existing  there  was,  an  implied 
warranty  of  merchautalde  quality  notwith- 
standing tlie  sale  was  by  a  sample,  which 
sani])le  was  itself  not  of  merchantable  quali- 
ty, the  defect  not  being  discoverable  upon  a 
reasonalile  examination  of  the  sample. 

The  point  urged  in  the  defendants'  argu- 
ment, that  tlie  plaintiffs'  remedy  was  de- 
stroyed by  their  acceptance  of  the  goods,  was 
not  taken  at  the  trial,  and  no  ruling  was 
asked  ailapted  to  raise  the  question  as  to  the 
effect  of  such  acceptance.  For  these  reasons, 
in  the  opinion  of  a  majority  of  the  court,  the 
entry  must  be:    Excsptions  overruled. 


GREGORY  V.  MORRIS. 


367 


GREOOnT  y.  MORRIS. 

(!»(J  I,'.  S.  619.) 

Supreme  Court  of  the  United  States.    Oct. 
Term,  1877. 

Krror  to  tlie  supreme  court  of  Wyoming 
territory. 

On  Fell.  !•(!,  IS?;!,  W.  A.  MorriH  and  A.  J. 
Urejiory  made  a  written  contriict  nt  Aiih- 
tiii.  Tix..  for  the  Rali-  to  tlic  latter  of  a 
larfje  nuiiilicr  of  oattli'.  Tlie  contract  pro- 
vi<lud  tliut  .MorriH  wuh  to  retain  a  lien  on 
the  cattle  until  the  price,  ?s,(Mi(),  Hliould  be 
|!ai(l,  and  autliorized  him  to  dcBiji'nate 
H(jine  pcrnoii  as  liiH  naent  to  ixo  alon^with 
and  retain  poHsc.-sion  of  the  cattle.  If  the 
tialtince  of  the  piicewas  not  paid  on  or 
hefoni  October  Iwt  (olIouiuK,  Huch  anient 
waH  toKcU  all  orHuch  portion  of  the  cattle 
an  woidd  pay  the  purcha.se  money  then 
due,  us  well  as  the  wanes  and  other  e.\ 
penses  of  the  af^ent.  After  the  contract 
was  signed,  Morririexecuted  to  one  Poteet 
ft  l)ower  of  attorney,  autlioriziiiK  him  to 
accompany  the  cattle,  and  retain  the  lien 
provided  for.  The  cattle  arrived  on  the 
Laramie  Plains  in  September.  October 
4th,  the  price  not  Imvinf;  been  paid  by 
tirejjory,  I'oteet  took  forcible  possession 
of  the  cattle,  and  diove  them  from  tlie 
ranch  where  they  were  Kraziiif?  to  that  of 
one  .\lsop,  some  distance  off.  Grej^ory 
then  lirou^ht  replevin  av:ainst  .Morris  and 
Poteet  to  recover  possession  of  the  cuttle. 
The  defendants,  in  their  answer,  denied  all 
the  allei;ati(ins  of  the  petition,  and  esi)e- 
eially  that  they  wronnfully  detained  lbs 
cattle.  At  thetrial,  the  plaintiff  having  in- 
troduced evidence  to  prove  possession  and 
ownershli),  the  value  of  the  cattle,  the  tak- 
ing and  detention  of  tliem,and  hisdemund 
for  their  return,  the  defendants  offered  the 
written  contract  and  other  documentary 
evidence,  which  offer  was  obiected  to  b.v 
the  plaintiff,  and  the  objection  sus- 
tained. The  defendants,  having  amended 
their  answer,  were  pertnitted  to  introduce 
the  special  matter  which,  under  tlieir  orig- 
inal answer,  had  been  excliideil  by  the 
court.     Tl;e  plaintiff    Ihoreupoa    cxcepteil. 

The  court,  without  objection,  charged 
the  jury  that,  "there  l)eing  no  ipiiRtion  of 
title  to  the  cattle  (lUt  in  issue  by  the  plead- 
ings, but  of  possession  only,  if  you  lind  for 
the  defendants,  you  will  lin<l  'that  they 
liad  the  right  of  possession.'  and  will  as- 
sess such  damages  as  they  have  sustained 
by  reason  of  lieiPig  deprived  of  that  pos- 
session, and  the  opportunity  of  selling  the 
cattle  according  to  the  contract."  The 
plaintiff  (iraycd  for  certain  .instructions, 
which  were  refused  by  the  court.  They 
are  stated  in  the  seventh  assignment  of  er 
ror.  The  jury  foun<l  for  the  defen<lants. 
anil  assessed  their  damages  $7,4.")4.0l).  .\ 
motion  by  the  plaintiff  tor  a  new  trial  was 
overruleil,  and  judgment  rendered,  which 
was  allirmed  by  the  sniirenie  court  of  the 
territory.  Plaintiff  sued  out  tliis  writ,  and 
assigns  for  error  that  said  supreme  court 
*rred, — 

1.  In  sustaining  the  ruling  of  the  ilistrict 
court  in  instructing  the  jur.v  as  follows,  to 
wit,  "The  jury  must  compute  the  dnin- 
aKes,antl  return  their  verdict  on  thatcuni- 
pututiou  in  dollars  und  cents;  and,  if  the 


jury  finil  the  contract  on  the  part  of  the 
plaintiff  was  to  pay  a  certain  sum  of 
money  in  gold,  they  will  compute  the  dif- 
ference between  gohl  and  currency,  and 
render  their  verdict  in  dollars  and  cents  in 
currency. " 

2.  In  sustaining  the  ruling  of  said  dis- 
trict court  In  giving  to  the  jury  the  follow- 
ing instructl(jn  :  "That  the  written  con- 
tract between  .Morris  and  (ireg.)ry,in  con- 
uection  with  the  bill  of  sale,  the"  receipt, 
and  the  power  of  attorney  to  Poteet.  ne<;- 
essurily  explain  on<l  deline  the  rights  and 
interests  of  the  parties  to  this  acthjn  In 
the  property  in  (juestion." 

;!.  In  sustaining  the  ruling  of  sairl  dis- 
trict court  in  giving  to  the  jury  the  ffd- 
lowing  instruction  :  "That  by  and  under 
those  iiapers  the  defendants  had  a  legal 
right  to  take  poss"ssiou  of  the  cattle  In 
question  on  or  .■ifter  the  first  rlay  of  Oc- 
tober last,  and  retain  such  possession,  for 
the  purpose  of  selling  them,  according  to 
the  terms  of  saiil  contract." 

4.  In  sustaining  the  riding  of  said  dis- 
trict court  in  giving  to  tlie  jury  the  fol- 
lowing instruction:  "That  if  the  jury  lind 
that  Poteet,  in  |)ursuance  of  his  power  of 
at  torney,  took  pusaession  of  said  cattle, 
and  removed  tliem  to  .Vlsop's  rnuch  for 
the  purpose  of  sellini;  them,  according  to 
the  terms  of  said  contract,  then  the.y  must 
find  the  right  of  possession  in  the  defend- 
ants at  the  coniinencement  of  this  action, 
and  must  assess  such  damnKes  for  the  de- 
fendants UP  are  just  and  proper." 

.^>.  In  sustaining  the  ruling  of  said  dis- 
trict court  in  giving  to  tlie  jury  the  fol- 
lowing Instruction  :  "That  the  iileadings 
ill  this  ca.ie  put  in  issue  only  the  right  of 
possession  at  the  time  of  the  service  of  the 
writ  of  replevin,  and  you  are  Instructed 
that  the  right  of  the  plaintiff  in  these  cat- 
tle at  that  time  was  only  a  right  of  re- 
demption as  a  mortnagor  after  condition 
broken;  and  that  he  had  no  rijiht  to  the 
possession  of  the  cattle,  and  no  riglit  to 
take  them,  by  replevin  or  otherwise,  from 
these  defeMclniits.  or  either  of  them,  until 
he  had  paiil  or  tendered  the  amount  due 
on  the  coiitr/ict." 

(i.  In  sustaining  the  ruling  of  said  dis- 
trict court  in  giving  to  the  jury  the  fol- 
lowing instruction:  "If  the  jury  tind  that' 
liy  the  terms  of  the  written  contract, 
which  uiust  govern  in  this  case,  that  the 
delendants,  on  the  lirst  day  of  Octolier. 
1S7:!,  had  a  right  to  sell  these  cattle,  the 
right  to  sell  necessarily  carries  with  it  the 
riglit  of  |)usses8ion." 

7.  In  sustaining  the  ruling  of  fl-e  said 
district  court  in  refusing  to  give  to  the 
jur.v  the  followinjr  instructions:  "If  the 
vendor.  Morns,  made  an  ngreemeiit  of  sale 
and  delivery,  and.  in  conforhiity  there- 
with, did  sefl  and  ilellver  cattle  to  iJreg- 
ory,  the  vendee,  and  liy  the  terms  ot  the 
agreement  made  ttctween  the  parties  the 
vendor  was  to  ha ve  and  maintain  a  lien 
upon  the  chattels,  or  cattle,  for  the  bal- 
uiiee  of  the  iiurchase  price,  by  keeping 
the  said  cattle  in  the  possession  of  the  ven- 
dor during  the  journey  from  Texas  to 
Wyoming,  until  the  first  day  of  October. 
1S73,  the  vendee,  (iregory,  after  receiving 
the  cattle  from  Morris,  must  have  tlrst  re- 
delivered   the  said  cattle   to   Morris,  and 


368 


GKEGORY  V.  MOItlUS. 


placed  them  in  his  hands  as  a  pledge  be- 
fore the  agrt'etl  lien  of  Morris  for  balance 
of  purchase  price  could  vest;  and,  second, 
if  such  redelivery  was  made  by  Gregory, 
the  vendee,  to  Morris,  the  vendor,  and 
thereafter  the  vendor,  Morris,  by  himself 
or  his  agents,  by  his  own  fiinlt,  careless- 
ness, or  negligence,  permitted  the  posses- 
sion of  the  said  cattle  to  again  pass  to 
Gregory,  the  vendee,  Morris,  the  vendor, 
thereby  lost  his  lien,  and  all  right  of  pos- 
session and  right  of  properti".  and  posses- 
sion must  thereafter  rest  and  remain  in 
Gregory. " 

S.  In  sustaining  the  ruling  of  the  dis- 
trict court  in  overruling  the  motion  of  tlie 
plaintiff  to  set  aside  the  verdict  as  defect- 
ive in  form. 

10.  In  sustaining  the  ruling  of  said  dis- 
trict court  in  overruling  the  plaintiff's 
motion  to  grant  a  new  trial. 

11.  In  sustaining  the  action  and  ruling 
of  the  district  court  in  admitting  in  evi- 
dence written  instruments,  the  execution 
of  the  same  not  having  been  proved. 

Mr.  W.  W.  Corlett,  for  plaintiff  in  error. 
Mr.  J.  M.  Wilson,  contra. 

Mr.  Thief  Justice  W.VITE  delivered  the 
opinion  of  the  court. 

The  sei'oud,  third,  fourth,  fifth,  sixth, 
seventh,  and  tenth  assignments  of  error 
ma.v  be  considered  together.  They  relate 
entirely  to  the  construction  and  effect 
given  the  contract  between  Gregory  and 
Morris,  as  shown  Ij.v  the  several  instru- 
ments in  writing  put  In  evidence.  There 
was  no  real  controver.sy  as  to  the  facts; 
but  Gregory  claimed  that  he  was  the  pur- 
chaser of  the  cattle  in  dispute  from  Mor- 
ris, and  that  the  lien  pro\ided  for  in  favor 
of  Morris  was  one  which  a  delivery  of  the 
property  under  the  contr.'ict  extinguished. 
There  was  no  pretence  of  payment  on  his 
part  further  than  that  shown  by  the  con- 
tract itself,  or  of  title,  except  such  as  was 
ac<iuired  through  this  i)urchase. 

The  lien  at  common  law  of  theveudorof 
jiersonal  property  to  secure  the  paynient 
of  purchase  money  is  lost  by  the  volun- 
tary and  unconditional  delivery  of  the 
property  to  the  purchaser;  but  this  does 
not  prevent  the  parties  from  contracting 
for  a  lien  which,  as  between  themselves, 
will  be  good  after  delivery.  8o,  ordi- 
naril.v,  when  the  possession  of  a  pledge  is 
reliniiuished.  the  rights  of  the  pledgee  are 
gone.  In  this  case,  however,  Morris  was 
not  willing  to  rely  upon  the  lien  which  the 
law  gave  him  as  vendor,  or  upon  a  mere 
pledge  of  the  property,  but  reo.uired  a  spe- 
cial contract  on  the  part  of  Gregory,  se- 
curing his  rights.  'I'his  contract  created 
acnarge  upon  the  property,  not  in  the 
nature  of  a  pledge,  l)ut  of  a  mortgage. 
The  lien,  as  between  the  parties,  was  not 
made  to  depend  upon  possession,  l)ut 
upon  a  contract,  which  defined  the  rights 
both  of  Morris  and  Gregory,  and  the  pow- 
er of  Moriis  for  the  enforcement  of  his  se- 
curity. When  Poteet  assumed  the  exclu- 
sive possession  of  the  property,  no  rights 
of  third  persons  had  intervened,  and  there 
was  notliing  to  prevent  the  execution  of 
the  agreement  according  to  its  terms. 
This  clearly  gave  Morris   the  right,  after 


Oct.  1,  if  the  purchase  money  was  not 
paid,  to  take  the  cattle  into  his  own  pos- 
session, detain  them  until  the  balance  due 
him  was  discharged,  and  sell  them  if  nec- 
essary to  obtain  his  money.  We  think  the 
court  defined  correctly  the  rights  of  tlie 
parties,  and  that  there  was  no  error  in 
this  particular,  either  in  the  charge  or  the 
refusal  to  charge. 

The  first  assignment  of  error  brings  up 
for  consideration  the  rule  of  damages  laid 
down  by  the  court.  By  the  laws  of  Wj'o- 
miug  territory,  property  tjiken  in  replevin 
is  delivered  to  the  plaintiff  upon  his  enter- 
ing into  an  undertaldng  to  the  defendant, 
with  one  or  more  sufficient  sureties  in  at 
least  double  the  value  of  the  property 
taken,  to  the  effect  that  the  plaintiff  shall 
duly  prosecute  his  action,  and  i)ay  all 
costs  and  damages  which  may  be  awarded 
against  him.  Civil  Code,  l.sti'J,  sect.  190. 
If  the  property  is  so  delivered,  and  the 
jury  find  for  the  defendant  upon  the  issues 
joined,  they  are  also  re(iu'red  to  find 
"  whether  the  defendant  has  the  right  of 
propert.v  or  the  right  of  possession  oid^- ; 
.  .  .  and  if  they  find  either  in  his  favor, 
the.v  shall  assess  such  damages  as  they 
think  right  and  proper  for  the  defendant; 
for  which,  with  costs  of  suit,  the  court 
shall  render  judgment  for  the  defendant." 
Sect.  I'Ju.  The  delivery  of  the  property  to 
the  piaintiff  passes  the  title  to  him  as 
against  the  defendant,  who  must  look  for 
his  i)rotectlon  to  a  recovery  in  damages, if 
the  writ  is  wrongfully  sued  out. 

In  this  case,  the  finding  for  the  defend- 
ant is,  under  the  pleadings,  in  effect,  that 
Morris  was  the  mortgagee  of  the  prop- 
erty in  possession  after  condition  broken, 
and  that  Gregory  hud  by  the  replevin 
wrongfully  deprived  him  of  his  possession. 
That  rendered  Gregory  liable  for  such 
damages,  in  consequence  of  hi."  wrongful 
act,  as  were  "right  and  proper"  under  the 
circumstances.  The  obligation  secured  b.v 
the  mortgage  or  lien  under  which  Morris 
held  was  for  the  payment  of  gold  coin,  or, 
as  was  said  in  Bronson  v.  Kodes  (7  Wall. 
229),  "an  agreement  to  deliver  a  certain 
weight  of  standard  gold,  to  be  ascertained 
by  a  couut  of  coins,  each  of  which  is  cer- 
tified to  contain  a  definite  proportion  of 
that  weight,"  and  is  not  distinguishable 
"from  a  contract  to  deliver  an  equal 
weight  of  bulllor.  of  eijual  fineness."  In 
that  case,  it  was  held  that  juilgment  might 
be  rendered  upon  such  a  contract  payable 
in  coined  dollars;  but  here  the  suit  is  not 
upon  the  contract  for  the  recovery  of  the 
amount  agreed  to  be  paid,  but.  In  effect, 
for  damages  on  account  of  the  wrungful 
detention  of  propert.v  mortgaged  to  secure 
the  debt.  Gregory  himself  asked  the  court 
to  charge  that  "the  jury  must  compute 
damages  and  return  their  verdict  in  dol- 
lars and  cents."  This  \vas  undoubtedly 
correct,  and  It  was  done;  but  he  further 
asked  the  court  to  say  that  "no  agreement 
or  contract  to  pay  a  certain  numlier  of 
dollars  In  gold  can  be  enforced.  The  na- 
tional currency  Is  l)y  law  a  legal  tender  at 
its  face  value  for  all  debts  and  demands, 
public  or  private,  except  duties  on  Imports 
and  interest  on  the  public  debt."  This 
was  in  confiict  with  Bronson  v.  Rodes, 
aud  therefore  projierly  refused. 


GREG  OK  Y  V.  MOUUIS. 


369 


But  the  court  dill  say  to  the  jury,  that, 
if  tliL'y  found  the  contract  on  tlio  part  of 
the  plaintiff  was  to  pay  a  certain  Hum  of 
money  in  irold,  tliey  HJiould  compute  tlie 
difference  between  t^ohl  and  currency,  and 
render  llieir  verdict  in  dollars  and  cents  in 
currency ;  and  in  this  we  see  no  error. 
While  we  have  decided  that  a  judgment 
upon  a  contract  payable  in  jjolil  may  be 
fijr  payment  in  coined  dollars,  we  have 
never  held  that  iii  all  cases  it  must  be  s.>. 
While  Kold  coin  is  in  one  sense  money,  it  is 
in  another  an  article  of  merchandisp. 
(Iref^ory  was  re{iuired  to  discharf^e  his 
debt  inK-'l'l  liefore  he  could  rightfully  take 
tlie  property  into  liU  possession  under  the 
replevin.  If  tlie  payment  had  been  so 
made,  Morris  would  have  had  his  coin  ut 
that  time  to  use  as  money  or  merchandise, 
according  to  liis  discretion.  Hut  it  was 
not  made;  and  (Jretjory,  by  his  wrouKful 
act  in  taking  the  property,  BUl)jected  him- 
self to  damay;es.  If  the  contract  liad  been 
in  terms  for  the  delivery  of  so  much  yold 
bullion,  there  is  no  doubt  but  the  court 
niit;ht  have  directed  the  jury  to  (ind  the 
valuo  of  the  bullion  in  currency,  and  lirinj; 
in  a  verdict  accordingly.  Hut  we  think, 
as  was  thoujiht  in  Bronson  v.  Hodcs,  such 
a  case  is  not  really  distinRuishable  from 
this.  The  question  is  not  whether  (Jref;- 
ory  had  the  right  to  pay  in  gold  dollars 
after  his  debt  had  become  due,  but  wheth- 
er, hnviiiK  wrongfully  got  the  property 
into  Ills  possession  witliout  payment  at 
nil,  the  damages  he  is  required  to  pay  on 
account  of  this  wrongful  act  must,  as  n 
matter  of  law,  be  estimated  in  sold,  or 
whether  they  may  be  in  currency.  We 
think  it  clear,  that,  under  such  circum- 
stances, it  was  within  the  power  of  the 
court,  so  far  as  (Jregory  was  concerned,  to 
treat  the  contract  as  one  for  the  delivery 
of  so  much  gold  bullion:  and,  if  Morris 
was  willing  to  accept  a  judgment  which 
might  be  .lischnrged  in  ouriency,  to  have 
his  dnninges  estimated  accfjrding  to  the 
currency  value  of  bullion.  Cert'iinly,  if 
Morris  had  in  good  faitli  sold  the  cattle 
under  his  power  of  sale  for  currency,  and 

LAW  SALKS — 24 


received  payment  In  that  klnil  of  money, 
he  would  have  been  entitleil  to  ronvertthe 
curiency  into  gtjhi  before  crediting  It  upoo 
his  debt.  So  here,  if.  with  the  approba- 
tion of  the  court,  he  takes  a  judgment 
that  may  be  discharged  in  currency,  the 
judgment  should  be  for  an  ncnount  which 
would  be  tlie  e(|uivalent  in  currency  of  the 
specilied  amount  of  coin  as  bullion.  This 
was  the  rule  adopted  liy  the  court,  and 
we  think  it  correct. 

The  eighth  and  ninth  assignaientM  of 
error  I'elate  to  the  form  of  the  ver<lict.  As 
has  already  breii  seen,  where  the  proiierty 
has  been  delivereil  t(j  theiilaintirf.  the  jiiry, 
if  they  liixl  for  the  defendant,  must  also 
find  whether  the  defendant  has  "  the  right 
of  property  or  the  right  of  possession 
only."  In  this  case  the  verdict,  though 
for  the  ilefendant,  is  siknt  uj.on  that 
point;  but  the  record  shows  that  by  con- 
sent the  court  charged  the  jury  if  they 
found  for  the  defendants  they  shoulil  Hnd 
"that  they  had  the  right  of  i)osHession 
only."  This  cures  any  defect  there  may 
have  been  in  the  verdict  in  this  particular. 
The  whole  recoril  must  be  tiiken  together; 
and,  as  the  jury  did  not  find  to  the  con- 
trary of  the  instruction,  the  presumption 
is  that  thc.v  followeil  it. 

.\ll  the  other  ussignments  relate  to  the 
admissibility  of  evidence,  and  as  to  them 
it  is  suflicient  to  say  we  are  satisfied  with 
tlie  rulings  tliat  were  made.  Certainly,  the 
instruments  in  writing  which  were  ob- 
jected to  were  adinissiljle.  They  tended 
directly  to  prove  the  defence  set  up  in  the 
amended  answer,  and  no  objection  ap- 
pears to  have  been  made  at  the  trial  as  to 
the  proof  of  their  execution.  The  cross-ex- 
amination of  Gregory,  which  was  ob- 
jecteil  to,  was  clearly  legitimate,  under 
the  most  stringent  rules  governing  that 
subject.  He  had  testified  that  hehad  pur- 
chased the  cattle  from  Morris.  It  was 
clearly  proper,  therefore,  on  cross-exami- 
nation, to  ask  him  if  his  contract  of  pur- 
chase was  in  writing,  and,  il  so,  to  iden- 
tify the  paper. 

Judgment  affirmed. 


GRIEB  V.  COLE. 


371 


GRIEB  T.  COLE 

(27  N.  W.  Rep.  579,  60  Mich.  397.) 

Supreme   Court    of   Michigan.    April    8,    ISSC. 

Error  to  St.  CInir;  StevenH,  Juflge. 

AssiiinpHit.  Del'enduut  brings  error. 
ReverHC'd.  The  lai'ts  are  stated  in  tlie 
opiuioii. 

(jforge  P.  V'oorheis.forappellant.  Chad- 
wicli  &  Wood,  for  plaintiff. 

CIIAMPI.l.N.  J.  On  .May  1,  1S,S3,  one  W. 
U.  .NU'l^auKJiiin,  as  agent  for  i)l«intiff, 
toot;  from  tlie  defendant  tlie  following 
(irder:  "(iratlot,  .Midi.,  .\Iny  J,  l.ss;!.  To 
Clinrles  Oriel),  I'ort  Huron,  .\liili.:  Yon 
will  please  Tiliip  me,  on  or  about  tlio  first 
day  of  .luiii",  ls.>;j,  t)ne  Huckeye  liglit 
mower,  to  I'ort  Huron,  for  wliieli  I  agre'? 
to  pay  you  $77,  in  manner  as  followH,  (re- 
serving, however,  tlie  full  henetlt  of  the 
warranty  hereon  indorsed:)  $3.5  cash, 
with  freight  from  Port  Huron,  on  deliv- 
ery, and  execute  approved  notes  as  fol- 
lows: S.'iy,  payable  on  the  first  day  of 
January,  1XS4,  with  interest  at  7  per  cent, 
from  delivery;  ¥-12,  payable  on  the  first 
day  of  January,  ISS."),  with    interest   nt   7 

per  cent,  from  delivery;  $ ,  payalde  on 

the day  of ,  If^S-,  with  interest 

at  7  per  cent,  from  delivery.  For  the  pur- 
pose of  obtaining  credit   for   the   above,  I 

certify  that  I  own.  in  my  own    unine. 

acres  of  land  in  the  township  of  (iratiot, 
county  of  St.  Clair,  and  state  of  Michigan, 
of  which  M)  acres  are  improved,  anil  the 
wlule  worth,  at  a  fair  valuation.  $.5,0(10 
over  aiid  above  ail  incuiul)rances,  lialnli- 
ties,  and  legal  exetniitions.  It  is  not  in- 
oumtiered,  except  1,(KH)  dollars,  and  the  ti- 
tle Is  perfect.  I  nl8o  own  f.'iOO  worth  of 
personal  jjroperty  over  and  above  all 
indelttedness,  and  not  e.\empt  from  execu- 
tion liy  law.  P.  O.  address.  Port  Huron. 
Taken     by    \V.    D.     McLaughlin,     Agent. 

His 
Chas.   X  Cole," — across  the  back  of  which 

Miirk 

waH  printed  a  Ijlank  warranty,  with 
(jrieb's  printed  name  appended,' as  fol- 
lows:   "Whereas,  ,\Ir. has    this  day 

given  us  his  order   for  a ,  we   hereby 

agree,  in  consideration  of  said  order  and 
the  faithful  ()erfonnance  of   the  conditions 

heieiii    mentiinied,  to    warrant  said 

one  year  to  be  good  and  well  made,  and 
to  do  as  good  W(jrk  as  any  other  machine 
of  lis  class.  It  is  an  express  condition  of 
Ihis  warranty  that  the  directions  for 
using  this  macliine  shall  be  faithfully  fol- 
lowed, and  if  for  any  reason  it  fails  to 
perform  as  warranted,  immediate  notice 
of  the  same  must  be  conimunicated  to 
tliea;reiit  to  whom  the  order  is  given, and 
If  said  agent  should  fail  to  make  the  ma- 
•'liine  perform  as  wnrrnnted,  it  may  be 
returned,  and  money  or  note  refun.ied. 
And  It  is  also  agreed,  should  the  machine 
be  used  from  day  to  day  or  at  intervals. 
or  set  aside  before  or  after  use,  without 
giving  said  agent  notice,  then,  in  either  of 
said  cases,  it  shall  be  conclusive  evidence 
that  the  machine  is  acceptotl  and  the  war- 
rant   is    at    an    end.       Dated . 


Charles  Orieb."  The  agent  delivered  this 
so-called  "order"  to  the  plaintiff,  who 
claims  that  he  accepted  It,  and  delivered 
to  the  defendant  the  said  machine  on  the 
eighteenth  day  of  July.  lKs;j.  hut  the  de- 
fendant has  neither  paid  for  said  machine, 
nor  executed  and  delivered  the  notes;  and 
after  the  time  expired  when  the  note  for 
?3.')  mcntioneil  in  Uie  order  would  have 
I  matured,  had  it  been  executed,  the  plain- 
J  tiff  brought  suit  in  justice's  court  to  re- 
cover the  amount  claimed  to  be  due  at 
I  that  time.  The  plaintiff's  declaration  was 
in  writing,  ami,  besides  the  common 
'counts  in  asHunipsit.  contnine<1  a  special 
count,  and  setting  out  the  sul)stance  of 
tlie  above  order. and  nlleiring  a  delivery  of 
the  macliine  ordered.  The  |)lea  was  the 
general  issue. 

It  is  always  proper. In  construing  a  con- 
tract, to  take  info  consideration  the  po- 
sition which  the  parties  occu|)ied,  and  the 
1  circumstances  under  which  the  agreement 
was  entered  into.  The  plaintiff  resided  at 
Port  Huron,  and  was  engaged  in  the  bus- 
iness of  supplying  mowing-machines  to 
farmers.  Hewasnota  manufacturer,  but 
took  written  oniers,  and  purchased  the 
machines  to  till  such  orders.  Defendant  la 
a  farmer,  residing  in  the  vicinity  of  Port 
Huron,  and  on  thesecond  day  of  May,Ks.'!, 
signed  the  oriler  above  set  out.  anil  deliv- 
ei'eil  it  to  plaintiff's  agent.  On  the  trial 
the  plaintiff  offered  In  evidence  the  afore- 
said order,  and  warranty  thereon  In- 
dorsed; to  which  the  defendant  objected 
because  not  admissible  under  the  declara- 
tion, and  as  immaterial  to  the  issue.  The 
t  objection  was  overruled,  and  this  consti- 
tutes defendant's  first  assignment  of  error. 
This  objection  is  based  uixin  the  idea  that 
the  paper  is  incomplete;  that  the  order 
refers  to  the  warranty  on  the  back,  and 
reserves  the  full  lienetit  of  such  wariimty, 
and  it  appears  that  the  blanks  in  the  war- 
ranty were  not  hlled  out;  and  it  is 
claimed,  and  I  think  rightly,  that  the 
warranty  indorsed  must  be  of  surli  legal 
validity  as  to  support  an  action  thereon 
by  Cole  in  case  of  a  l)reacli  thereof. 

By  reference  to  the  warranty  indorsed, 
it  w'ill  be  oliserved  that  the  name  of  .Mr. 
Cole,  and  the  description  of  the  machine 
ordered,  are  omitted,  as  well  as  the  date. 
If  the  warranty  stood  alone,  there  could 
be  no  doubt  that  it  would  be  so  far  in- 
complete as  to  render  it  invalid,  because 
thus  standing  it  lacks  the  essential  nuul- 
ities  of  naming  the  party  to  lie  indemni- 
fied and  the  subjeot-malter.  It  does  not 
aitpear  from  it  whether  the  machine  Is  a 
steam-thresher  or  a  mowing-machine. 
But  the  reference  in  the  order  to  the  war- 
ranty indorsed  thereon  constituted  the 
order  and  warranty  one  instrument,  and 
when  read  together.no  ambiguity  or  un- 
certainty appears.  The  party  to  whom 
the  warranty  is  made  is  tlie  party  making 
the  order,  and  the  machine  is  the  machine 
described  in  the  order,  and  the  date  of  the 
order  supplies  the  date  to  the  warranty, 
for  they  are  contemporaneous,  and  the 
warranty  has  the  same  force  and  effect  as 
if  embodied  In  the  order  itself.  The  war- 
rantor is  bound  by  the  printed  signature 
which  he  adopts  as  his  as  fully  as  if  It  was 


372 


GRIEB  V.  COLE. 


in  his  handwriting.  The  order  and  war- 
ranty were  properly  admitted  in  evidence 
at  that  stage  of  the  case. 

The  plaintiff  gave  evidence  tending  to 
show  that  he  had  coinplied  with  the  con- 
tract on  his  part,  and  had  delivered  the  ma- 
chine at  Port  Huron  within  the  terms  and 
meaning  of  the  contract,  and  also  had  re- 
quested defendant  to  execute  the  notes, 
and  that  defendantdeclined  toacceptsuch 
delivery,  or  to  execute  and  deliver  the 
notes.  Tlie  fact  of  delivery  was  contro- 
verted by  defendant.  The  defendant  also 
offered  testimony  tending  to  show  that 
the  mower  which  plaintiff  claimed  to  have 
delivered  to  defendant  was  a  second-hand 
machine,  showing  considerable  wear; 
that  the  worn  parts  had  been  stripped 
and  filled  with  paint  in  the  woodwork, 
and  parts  of  it  had  been  painted  ovorafter 
having  been  used  and  worn;  that  the 
axles  had  old  grease  upon  them,  one  set 
of  knives  were  chipped  and  broken,  and 
the  tongue  and  neck-yoke  considerably 
worn  ;  that  the  entire  machine  liad  been 
used  oneseason  somewhat;  butthe  court, 
on  objection  of  plaintiff's  counsel,  ex- 
cluded this  evidence  as  not  admissible  un- 
der the  plea,  and  not  tending  to  show  the 
condition  of  the  machine  when  delivered. 
The  latter  portion  of  this  ruling  was 
based  upon  the  fact  that  the  witnesses  by 
whom  these  facts  were  sought  to  be 
proved  did  not  make  the  examination  of 
the  machine  until  after  the  trial  in  the  jus- 
tice's court  in  April,  18S4.  The  evidence, 
however,  showed  that  on  the  twenty-first 
of  July,  1.SS3,  which  was  three  days  after 
plaintiff  claims  to  have  S3nt   the  machine 


to  defendant's  farm  and  demanded  the 
notes,  defendant  gave  written  notice  to 
plaintiff  that  he  refused  to  purchase  it, 
and  that  it  was  there  at  plaintiff's  risk, 
and  to  come  and  take  it  away,  and  the 
testimony  was  that  it  had  not  been  used 
since.  There  was  therefore  no  reason  for 
excluding  the  testimony  on  this  ground. 

The  court  erred  also  in  excluding  the  ev- 
idence upon  the  other  ground  stated.  It 
was  proper  for  the  defendant,  under  the 
plea  of  the  general  Issue,  to  prove  thsit  the 
article  delivered  was  not  the  article  he 
purchased.  He  did  not  order  or  purchase 
a  second-hand  mowing  machine,  or  one 
that  had  been  in  use  and  worn  ;  but  the 
order,  taken  in  connection  with  the  cir- 
cumstances under  which  it  was  made, 
called  for  a  new  machine.  A  purchase  of 
a  machine  from  a  dealer  implies  that  the 
machine  sold  shall  be  new. — that  is,  not 
second-hand,  or  the  worse  for  wear, — and 
under  such  an  order  the  dealer  could  not 
impose  upon  the  purchaser  a  second  hand 
and  worn  article,  whether  it  complied 
with  the  terms  of  the  warranty  or  not,  as 
to  being  good  and  well  made,  and  will  do 
as  good  work,  as  any  other  machine  of  its 
class.  This  evidence,  if  believed,  fairly 
met  and  rebutted  the  plaintiff's  case,  and 
tended  directly  to  sustain  the  defendant's 
plea,  which  put  in  issue  each  and  every 
allegation  .if  the  plaintiff's  declaration. 
Rodman  v.  Guilford,  112  Mass.  405. 

The  judgment  must  be  reversed,  and  a 
new  trial  ordered. 

CAMPBELL,  C.  J.,  and  MORSE.  J.,  con- 
curred.   SHERWOOD.  J.,  did  not  sit. 


1 


GROAT  V.  GILE. 


I 
i 


375 


GROAT  et  al.  t.  GILE. 

(51  N.  Y.  431.) 

Commission  of  Appeals  of  New   York.     1873. 

Appeal  from  order  nettinn  iiHiiie  o  ver- 
dict for  plaintiffs  and  granting  a  new 
trial. 

Action  to  recover  ttie  value  of  wool 
wliicli  tlu'dcfcnilaiit  linil  Hhornfroiu  Hlu-cp, 
to  which  I  lif  pJMintill'.s  claimed  title.  The 
opinion  titateM  the  facts. 

John  II.  IteynolilH.lor  api)elluiitM.  John 
(jaul,  Jr.,  for  ix-Mpoiulent. 

LOTT,  C.  C.  Ah  the  verdict  of  the  cir- 
cuit in  favor  of  tlie  [ilaintiffs  wa.s  onlered 
by  tlie  judge  who  tried  the  action  on  the 
version  given  by  the  liefi  ndant  oi  tlir  con- 
tract or  agreement  lietween  the  parties,  it 
becomcH  neccHsni'y  to  refer  to  it  with  par- 
ticularity tor  tlie  purpose  of  ascertaining 
whether  his  conclusion  Af  law  based  there- 
on was  correct. 

The  defendant,  on  his  direct  examina- 
tion, after  stating  that  the  plaintiffs 
called  on  him  about  thel'Olh  of  May,  \sm, 
and  that  he  and  the  plaintiff  Croat  had 
some  convci-sation  about  the  purchase  of 
his  sheep  and  lamtis,  in  which  he  sai.l  that 
he  wanted  to  sell  the  old  sheep  with  the 
lambs,  and  that  he  would  ask  .1f4  apiece 
for  tlietn,  testilled  as  follows:  '"J'hey  con- 
cluded to  go  and  nee  the  slieep ;  1  told 
tliem  where  they  were;  »)ne  tlock  was 
near  a  mile  Ironi  thelionse;  they  went  off 
together;  went  to  the  further  lot  tirst; 
when  Ihey  came  back  from  this  lot  I  tolil 
tliem  wlwre  the  others  were;  I  told  them 
1  did  not  t)elieve  they  would  like  that  lot; 
they  did  not  look  as  well  as  the  others,  as 
some  of  th"m  had  lost  their  wool;  then 
they  went  off  to  see  the  other  lot  and 
came  back;  they  asked  me  how  many 
BiHH'p  and  lambs  there  were;  I  tolil  tliein  I 
could  not  tell  how  many  there  were;  I  did 
not  know  myself;  I  think  I  H:iid  in  the 
neighborhood  of  so  many  sheep  and  ho 
many  laml)s;  then  they  in(]uired  about 
taking  tiK-  sheep;  it  was  agree<l  that  they 
shouhl  take  the  lambs  the  middle  of  Sep- 
tember and  the  old  sheep  tli<'  first  of  No- 
vember, anil  pay  me  .54  apiece  for  sheep 
anil  lambs;  this  was  the  contract;  think 
I  told  them  1  would  give  them  a  good 
chance;  something  was  said  about  cut- 
ting the  lambs'  tails  off;  I  told  tiicin  1 
thought  it  wasnot  in  iident ;  I  trieil  todis- 
suade  them  from  having  it  done;  that  they 
had  eot  too  large  and  might  die;  some- 
thing wjis  said  in  answer  to  if,  but  I  doa't 
know  just  what;  they  askid  me  if  the 
sheep  were  sound  afler  they  had  been  to 
see  them;  1  told  them  I  did  not  consider 
them  eiil  in  ly  sound  ;  then  lliey  asked  that 
I  should  doctor  the  sheep  if  they  needed  it ; 
1  told  them  1  would;  after  the  talk  they 
li.Mudeil  me  over  twenty  live  <lollars  to 
bind  the  bargain,  . -IS  they  said  ;  then  they 
Went  away."  On  his  crosse.\amin;ilioii, 
he  said  :  "  When  (iroat  and  .lacobia  were 
there  in  May,  I  had  sheep  in  two  lots:  the 
sheep  I  sold  them  wei-e  in  the  lots  men- 
tioned; I  sold  them  all  that  were  in  these 
lots;  did  not  knt)w  how  many  sheep  1 
bud;  had  not  counted  them  forsoinetime; 


soroetimes  thoy  die;  told  them  I  did  not 
know  how  many  I  had;  that  there  would 
be  in  the  neighborhood  of  ninety  old 
Hliec|);  they  were  to  take  all  the  sheep  in 
the  two  hUs,  except  two  bucks  and  a  lame 
ewe;  they  got  all  the  sheep  In  the  two 
lots  except  two  buiks  and  a  lame  ewe; 
they  agreed  to  give  four  dollars  per  head  ; 
in  the  bargain  they  were  to  have  all  the 
sheep  except  two  Imcks  ami  a  lame  shc-ep; 
1  agreed  to  sell  the  sheep  at  that  price; 
nothing  was  said  about  the  wool;  they 
got  ninety-tW'.  old  sheep  anil  seventy-one 
lambs."  And  o[i  further  re-dircct  exam- 
ination he  said:  "When  they  made  the 
contract  for  these  sheep,  there  was  noth- 
ing said  about  the  wool."  Ami  also: 
"Son)e  of  the  lambs  came  in  March,  and 
so  along,  and  some  were  only  n  tew  ilayi 
old;  some  time  in  August  is  the  usual 
and  projier  time  for  taking  lambs  from 
sheep;  they  had  not  been  siparated  from 
the  siieep  on  the  nineteenth  of  .May;  the 
lambs  were  in  no  condition  to  be  separat- 
ed from  the  sheep  at  that  time  without 
ruining  the  lambs." 

The  i)rcceding  statement  of  the  defend- 
ant's evidence  contains  all  that  nlates  to 
the  negotiation  and  making  of  the  agree- 
ment, and  fidly  jnstilies  the  construction 
given  to  it  by  the  learned  judue  at  the 
circuit,  it  is  clear  that  the  pluiuliffs  In- 
tended to  buy  of  t  Ik?  defendant,  and  that  It 
was  his  Intention  to  sell  to  them  ail  of  the 
sheep  and  lambs  that  were  rnnniuii  in  the 
two  lotsof  bind  referred  to  by  him  (except 
two  bucks  and  ji  lame  ewe,  as  to  the  iilen- 
tity  of  which  there  was  no  (luestioii),  at 
.•^4  per  he;iil,  and  that  no  further  or  other 
designation  or  s-lection  was  contemplat- 
ed. All  the  parties  nnderntood  what  iiar- 
tii-ulnr  sheep  and  lambs  were  intended  to 
be  sold,  and  there  is  no  doubt  that  these 
were  snilicicntly  identilied.  Indeed,  that 
fact  does  not  appear  to  have  been  disput- 
ed on  tlifc  trial.  rndersuchcirrumstanceB, 
when  the  terms  of  the  sale  were  agreed 
on  and  the  payment  of  ?"J.'i  was  made  to 
the  deie!iilant  on  account  of  the  purchase- 
money  by  the  i)laintiffB.  their  liability  be- 
camelixed  f.jr  the  balance,  which  was  as- 
certainable by  a  siiii|de  arithmetical  cnl- 
cnlation  based  upon  a  c<uiut  of  theshe<»p 
and  lambs  and  the  price  to  be  paid  per 
head  for  them.  No  delivery  of  them  or 
other  act  whatever  in  relation  to  them  by 
the  defcnilaiit  was  reipiired  or  inteiideil. 
The  plaintiffs  were  to  take  tliem  without 
any  agency  in  delivering  them  on  the  part 
of  "the  defeiiilant,  and  they,  ironi  tin-  time 
the  agreement  was  made,  liecjime  the 
owners  thereof.  Tl;e  defendant  siilise- 
ipieiitly  kept  them  at  the  risk  of  the  plain- 
tiffs, riiancellor  Kent,  in  his  Commenta- 
ries, vol.  1',  p.  4!»L',  in  stating  the  rule  gov- 
erning salesat  common  law. says:  "When 
the  terms  of  sale  are  agreed  on  and  the 
bargain  is  struck  and  everything  tliat  the 
seller  lias  to  do  with  the  gooils  is  com- 
plete, the  contract  of  sale  becomes  abso- 
lute as  between  the  parties  witlioiit  actual 
payment  or  delivery,  and  the  property  and 
the  risk  of  accident  to  the  goods  vest  In 
tlie  buyer.  "  Tills  rn!e  is  moililied  by  our 
statute  of  frauils  so  far  as  to  reipiire  In 
certain  cases  tlint  a  note  or  niemor.induin 
of  the  contract  shall   be  niuJe  In  writiu,; 


376 


GROAT  V.  GILE. 


and  subscribed  hy  the  parties  ti>  be 
cbargeil,  or  that  the  buyer  shall  accept 
and  receive  a  part  of  the  property  sold,  or 
at  the  time  pay  some  [lart  of  the  purchase- 
money;  and  in  sucli  cases  he  says,  at  p. 
49!):  "When  the  bargain  is  made  and  is 
rendered  binding  by  giving  earnest,  or  by 
part  payment,  or  part  delivery,  or  by  a 
comi)liance  with  the  requisition  of  tlie  stat- 
ute of  frauds,  the  property,  and  with  it 
the  risk,  attach  to  tlie  purchaser;  but 
though  the  seller  has  parted  with  the  ti- 
tle, he  may  retain  possession  until  pay- 
ment." The  fact  that  the  number  of  tne 
sheep  and  lambs  sold  was  not  ascertained 
at  the  time  the  terms  of  sale  were  agreed 
on  did  not  prevent  the  ajjplication  of  the 
rule  referred  to  in  tliis  case.  It  is  true 
that  the  same  learned  jurist,  after  stating 
that  "it  is  a  fundamental  principle,  per- 
vading everywhere  the  doctrine  of  sales  of 
chattels,  that  if  goods  of  different  values 
be  sold  in  bulk  and  not  sejiarately  and  for 
a  single  price,  or  per  aversionem,  in  the 
language  of  the  civilians,  the  sale  is  perfect 
and  the  risk  with  the  buyer,"  adds,  "but 
if  they  be  sold  b.v  number,  weight  or  meas- 
ure, the  sale  is  incomplete,  and  the  risk 
continues  with  the  seller  until  the  si)ecific 
property  be  separated  and  identified." 
The  present  case  is  not  one  of  the  latter 
class.  That  rule  has  reference  to  a  sale, 
not  of  specific  propei-ty  clearly  ascertained, 
but  of  such  as  is  to  he  separated  from  a 
larger  quantity,  and  is  necessary  to  be 
identified  befoi'e  it  is  susceiitible  of  deliv- 
ery. The  rule  or  principle  does  not  apply 
where  the  number  of  the  particular  arti- 
cles sold  is  to  be  ascertained  for  the  sole 
purpose  of  ascertaining  the  total  value 
Thereof  at  certain  specified  rates  or  a  des- 
ignated fixed  price.  Th's  distinction  is 
recognized  in  I'rofoot  v.  Bennett,  2  N.  Y. 
25S;  Kimberly  v.  Patchin,  19  id.  3:W;  75 
Am.  Dec.  :«4;  Bradley  v.  Wheeler,  44  N.  Y. 
495.  The  sale  in  question  was  in  fact  of 
a  particular  lot  of  sheep  and  lambs,  and 
not  of  a  certain  undesignated  number  to 
be  selected  and  delivered  at  a  future  time, 
and  tlie  postponement  of  the  time  for  tak- 
ing them  away  did  not  prevent  the  title 
passing  to  the  plaintiffs. 

A  sale  of  a  specified  chattel  may  pass 
the  property  therein  to  the  vendee  and 
vests  the  title  in  him  without  delivery. 
See  Chittv  Omtracts  (Sth  Am.  ed.),  3:32, 
and  Terry  v.  Wheeler,  25  N.  Y.  520. 

All  the  parties  apiienr  to  have  under- 
stood the  transaction,  at  the  time  it  took 
place,  as  a  present  absolute  sale  and 
change  of  title.  Wliat  was  said  about 
cutting  the  lambs"  tiiils  off  an<l  doctoring 
the  slieep,  if  they  needed  it,  is  evidence  r)f 
such  understanding,  and  there  is  nothing 
in  what  is  said  to  have  been  the  agree- 
ment about  taking  them  away  inconsist- 
ent with  it.  That  gave  the  plaintiffs  the 
privllegeof  leaving  them  in  the  defendant's 
pasture  till  the  time  specified  for  taking 
them  away,  but  did  not  deprive  them  of 
the  right  to  take  them  before,  if  they  chose 
so  to  do.  The  remark  of  the  defendant  at 
the  time  to  the  plaintiffs,  that  he  "  would 
give  them  a  good  chance,"  shows  that 
such  was  its  object  and  intention.  It  is 
proper   moreover   to   consider    the   state- 


ment in  reference  to  such  agreement  in 
connection  with  what  had  bien  i)reviously 
testified  to  by  the  plaintiffs,  and  which 
was  not  denied  by  the  defendant,  and 
therefore  impliedly  admitted,  to  the  effect 
that  <iroat,  one  of  the  plaintiffs,  before 
going  to  look  at  the  sheep  and  lambs,  had 
stated  to  the  defendant  that  he  had  no 
pasture  for  them,  to  which  he  rejilied  thaf 
he  had  lots  of  pasture  and  would  keep 
them  for  tlie  plaintiffs  if  they  purchased, 
and  that  they,  after  looking  at  them,  had 
stated  to  him  tliat  they  would  take  them 
at  the  price  named,  if  the  parties  could 
agree  upon  the  time  for  keei)ing  them. 
Considered  in  that  connection,  it  is  clear 
that  the  agreement  was  one  for  the  plain- 
tiffs' accommodation  and  an  inducement 
to  them  to  make  the  purchase  at  the  price 
asked,  which  hud  been  fixed  irrespective 
of  their  subsequent  pasturage  on  the  de- 
fendant's land.  It  affords  no  ground  or 
warrant  for  saying  that  the  defendant, 
during  the  time  they  were  so  kept,  intend- 
ed to  assume  and  bear  all  the  rieks  inci- 
dent to  a  continuance  of  his  ownership  of 
them,  and  consequently  that  the  purchase- 
money  receival)le  by  liim  should  depend 
on  the  number  tliat  should  be  living  at 
the  time  specified  or  limited  for  that  pur- 
pose. On  the  contrary,  tlie  fact  that  the 
price  at  which  thoy  were  sold  was  that 
named  by  him  when  the  first  application 
to  him  to  sell  them  was  made,  without 
reference  to  the  (juestion  of  the  future 
keeping  of  them  iii  his  i)asture,  and  the 
other  circumstances  attendant  on  the 
transaction,  as  stated  by  him,  clearly 
show  that  such  was  not  his  intention. 

It  follows,  from  what  has  been  said, 
that  there  was  no  error  in  the  ruling  of 
the  judge  that  the  title  to  the  sheep 
passed  to  tlie  plaintiffs  immediately  upon 
the  completion  of  the  contract  and  the 
payment  of  the  .^25  by  them.  That  neces- 
sarily carried  with  it  the  right  to  the  vfool 
on  them,  it  being  shown  that  there  was 
no  reservation  thereof,  or  any  thing  said 
about  it  during  the  negotiation  or  at  the 
time  the  contract  was  made.  It  is  not  a 
mere  presumpti(»n,  as  stated  in  the  pre- 
vailing opinion  in  the  supreme  court,  that 
the  parties  "intended,  in  the  absence  of 
evidence  to  the  contrary,  that  the  title 
to  the  wool  should  follow  tlie  title  to  the 
sheep."  As  was  well  said  by  .lustice  In- 
galls  in  his  dissenting  opinion:  "When 
the  siieep  were  sold  the  wool  was  grown 
and  was  a  part  of  the  sheep,  adding  to 
their  value, "and  thei'e  is  no  reas.)n  or 
principle  for  saying  that  such  particular 
part  did  not  pass  to  the  purchaser  with 
the  rest  of  the  animals.  Tlie  sale  was  of 
the  entireaniraaland  not  of  different  parts 
or  portions  constituting  it,  or  of  what  it 
was  formed. 

Assuming  then  that  the  legal  effect  of 
the  agreement  of  the  parties,  as  testified 
to  by  the  defendant  himself,  was  to  vest 
the  title  to  the  wool  in  the  plaintiffs,  it 
was  clearly  incompetent  to  sliow  a  cus- 
tom in  (^)lumbia  county,  where  the 
transaction  took  place,  that  the  wool  of 
sheep  sold,  uni'er  the  circumstances  dis- 
closed, does  not  go  to  the  purchaser.  See 
Wheeler   v.   Newbould,    IG   N.   Y.  392,401; 


GKOAT  V.  GILE 


377 


IliKKi'iifi  V.  M Of) re,  34  id.  417;  Bradley  v. 
Wheeler,  44  id.  4!).'.. 

TlnTf  were  weveial  offers  of  evidenoe  hy 
the  (lotendnnt  which  were  rejected  by  the 
court.  .\iii()iiK  them  wore  the  following: 
Int.  That  tlie  i)ljiintiff  Uroat,  on  a  prevl- 
<)U.'<  oc<-asion,  purcha.sed  a  iiiiinlier  of 
Hheop  and  laml)s  of  the  defendant  umler 
an  arrangement  precisely  nimilar  tri  tlie 
present,  and  that  lie  did  not  claim  the 
wool;  i!d.  That  the  plaintiffs  admitted  to 
a  witness,  on  heiiiy;  offered  $HM  tor  their 
liar(;iiin  with  the  defendant  and  to  take 
the  slK-ep  anil  lamlis  oft  their  hands,  al- 
lowing the  defendant  to  ha  ve  the  wool, 
refnseil  the  offtT  an<l  Haid  that  the  sheep, 
withont  the  wool,  were  worth  inme  mon- 
ey llian  the  offer;  Jind  :!d.  That  the  plnin- 
tifl  (lioat  admitted  that  he  did  not  nnder- 
Mtand  he  had  lion^^ht  the  wool  in(iuestion. 
or  think  of  makiiiK  any  claim  to  it  nntil 
his  co-plaintiff  suggested  that  they  could 
hold  it. 

'I'hese  were  properly  e.xcliided.  It  was 
immaterial  to  the  present  controversy 
what  the  ]daintiff8,  or  either  of  them,  had 
claimed  of  the  defendant  under  a  previous 
sale.  Their  legal  rights  could  not  lie  con- 
trolled under  the  present  contract  hy  a 
failure  to  ilemand  what  they  were  entitled 
to  under  a  previous  one,  and  it  cannot  lie 
held  that  the  wool,  under  this  agreement, 
was  excepted  from  the  operation  of  the 
sale,  because  one  of  the  [ilaintiffs  did  not 
assert  his  rights  under  another,  and  it 
could  Dot  aid  in  determining  what  the 
contract  in  disjiute  was,  whether  or  not 
the  purchase  of  the  sliee|i  was  so  prolit- 
ahle  as  to  cause  the  plaintiffs  to  reject  the 
offer  made  them  for  their  bargain.  Nor 
could  the  understanding  of  one  of  the 
plaintiffs,  as  to  the  question  whether  he 
had  liouiiht  the  wool  or  not,  alter  the 
i'ffect  of  the  transaction  or  the  contract 
actually  entered  into.  What  he  in  fact 
did  buy  was  the  ()uostion,  ami  that  ilid 
not  depend  on  what  he  understood,  but 
on  the  agreement.  The  defendant  was 
also  asked  what  was  the  v.iliie  of  the 
sheep  without  thewool  uniler  thearraiige- 
ment  he  had  testified  to.  That  ijuestion 
was  properly  excluded;  the  in(|niry  was 
wlioUy  irrelevant.  The  jiarties  could 
make  such  agreement  as  they  saw  tit,  and 
It  was  immaterial  whetlKM-  the  defendant 
sold  the  [iroperty  in  iiuestion  for  more  or 
less  than  it  was  worth,  in  the  absence  of 
any  fraud  or  other  evidence  affecting  its 
validity. 

There  was  a  request  to  charge  the  jury 
That  if  the  statement  of  the  defendant  was 
correct,  then  the  sum  of  $i"i  paid  by  the 
plaintiffs  was  merely  paid  to  bind  the  bar- 
gain and  take  the  contract  out  of  the 
statute  of  frauils,  and  that  the  title  to 
the  sheep  did  not  thereby  pass  absolutely 
to  the  plaintiffs.  This  was  refuseil,  and 
what  has  already  been  said  as  to  the  legal 
effect  of  that  statement,  shows  that  such 
refusal  was  correct. 

The  court  was  then  asked  by  the  defend- 
ant to  submit  the  tidlowing  (luestions  to 
the  jury: 

1st,  Whether  thecontract  in  suit  wasex- 
^cuted  or  executory;  whether  it  was  the 
intention  of  the  parties  that  the  title  to 
the  sheep  should  pass  to  the  plaintiffs  Im- 


tnediarely  upon  the  making  of  the  con- 
tract <ir  at  some  future  periml. 

'J<1.  Whether  tlii'  detendatit,  uiion  the 
iiiaking  of  this  contract,  inlentled  to  Bvli 
or  the  plaintiffs  t<i  buy  the  wool  In  queit- 
tion  in  this  suit;  and  on  his  refusal  ho  to 
<lo.  and  after  projier  exceptioiiH  were 
taken,  he  was  reiiuested  t(»  charge  the 
jury  that  if  the  contract  was  exe<-utory 
and  it  was  not  the  intention  to  pass  the 
title  to  the  i-heep  until  delivery  and  pay- 
ment, then  the  wool  sheared"  from  the 
sheep,  before  they  were  actually  ilelivered 
and  paid  for,  tielonged  to  the  defendant. 
This  was  also  refused,  and  an  exception 
was  taken  to  such  refusal. 

There  was  no  error  to  submit  those 
'luestions  or  give  that  instruct  ion  to  the 
jury.  They  all  involved  the  submission  of 
matters  of  law  to  their  consideration  and 
determination.  The  court  had  previously 
decided  that  the  terms,  nature  and  effect 
of  the  contract  should  lie  determined  and 
controlled  by  the  defeniiant's  statement, 
or  version  of  it,  which  was  the  most  fav<»r- 
able  view  in  which  it  could  be  c<iiisidered 
for  him.  The  case  was  thus  substantially 
one  in  which  there  was  no  dispute  of  facts 
as  to  the  terms  of  the  agreement,  and  it 
therefore  became  a  (piestioii  of  law  to  be 
determinerl  by  the  court,  whether  thecon- 
tract was  executed  or  executory,  and 
what  was  the  intention  of  the  parties  (to 
be  aseeriained  from  the  contract)  as  to 
the  nature,  extent  and  effect  ot  t  he  sale. 

The  only  remaining  ipu'stion  to  be  con- 
sidered relates  to  the  rule  of  damages  laid 
down  by  the  court,  which  he  stated  to  be 
"the  highest  market  priceof  wool  between 
the  time  of  the  demand  and  the  time  of 
trial,  with  interest  from  the  time  of  tho 
demand. " 

It  may  lie  questionnlile  whether  the  in- 
struction as  to  the  riglit  to  recover  inter- 
est iscorreet ;  and  I  understand,  from  the 
points  of  the  counsel  of  the  defemlant, 
that  he  only  makes  obji'ction  on  this  ap- 
peal to  that  portion  of  the  charge.  That 
((uestion  was  not  presented  by  his  excep- 
tion, wliich  was  to  the  entire  InstructiuD 
and  not  to  the  allowance  of  inti'rest  only. 
The  part  allouiiis  a  recovery  for  the 
liighest  market  value  lietween  the  conver- 
sion and  the  time  of  trial  was  held  by  us  in 
Lobdell  V.  Stowell.  decided  at  the  Septem- 
ber term,  1>>7"J,  l."d  N.  V.7tl,l  to  be  the  proper 
rule  or  measure  of  dauiages  orcompensa- 
tion,  on  the  autliorilv  of  llomaine  v.  Van 
.Mien.  -M  .\.  Y.  ;tO'.l ;  Hiirt  v.  Dutcher,  :U  Id. 
4;>:i;  .\laikham  v..laudon.41  id.  L':'..'i.    There 

was  therefore  no  ground  of   < iplaint    to 

that  portion  of  the  charge.  Tin- exception 
lieini:  to  that  as  weP  as  to  the  portion  re- 
lating to  the  interest,  was  too  broad  and 
conseiiuently  not  well  taken,  and  is  not 
available  as  a  ground  tor  setting  asidethe 
verdict  infavor  of  theplaintlffs  and  grant- 
ing a  new   trial. 

The  result  of  the  views  above  expressed 
is,  that  the  order  of  the  gi-iiernl  term 
granting  such  new  trial  slioulil  be  re- 
versed, and  judgment  must  be  orden^d 
against  defendant  on  the  verdict,  with 
costs. 

.Ml  concur. 

Order  reversed  and  judgment  accord- 
ingly. 


1 


I 


GROVER  0.  GROVER. 


879 


GROVER  T.  GROVER. 

(24  Pick.   201.) 

Supreme  Tiidicial  Court  of  Massachusetts. 
Middlesex.    March  20,  1837. 

AHsunipwit  upon  a  note  inatlc  by  ClmrloH 
W.  (jr()V('r,  luiil  pji.vniile  to  the  order  of 
lliriini  !S.  (jrover,  the  iilaintifl'H  intestate. 
In  March,  Is.'iJ,  (ii-over  \V .  Blancliard 
ealh'il  to  Kee  tlie  inte.state,  and  aHked 
vvlicther  the  iriort^aKe  deed  given  to  secure 
the  payment  of  th('  note  in  qiioHtion  had 
been  recorded?  The  deed  liad  not  been  re- 
corded, and  tile  intestate  naid  to  Itlaucli- 
ard,"I  will  make  a  present  of  these  toyou, 
if  you  will  accept  them."  Blanchard  then 
took  them,  and  put  them  in  his  pocket, 
sayinj;;  that  he  would  accept  them  as  a 
token  of  affection,  lllanchard  afterwards 
gave  them  back  to  the  intestate,  savins, 
"You  may  keep  the  papers  until  I  call  for 
them,  or  collect  them  for  me."  NoassiKii- 
ment  was  made  on  the  note  or  mortijaKe- 
The  intestate  then  put  the  morteage  dee(l 
on  record.  The  plaintiff,  after  the  death 
of  tlio  intestate,  took  the  deed  from  the 
renister's  ollice,  and,  havintr  received  pay- 
ment of  the  amount  secured  thereby,  dis- 
charKed  the  niortnaKe.  I'pon  the  death  of 
tlie  intestate,  the  note  was  found  in  his 
chest,  with  his  papers;  and  Blanchard 
took  it,  refused  to  deliver  it  to  the  plain- 
tiff, and  caused  this  action  to  lie  l)rou;;ht 
liy  the  administrator  for  his  benefit.  The 
defendant  contended  (1)  that  no  valid  frift 
of  a  chose  in  action  could  t)e  made  inter 
vivos  without  writinj;;  (2)  that  the  name 
of  the  donor  or  of  his  administrator  could 
not  be  used  without  his  consent  in  an  ac- 
tion for  the  use  of  the  donee;  and  (3)  that 
the  donor  could  not,  by  law,  .ict  as  the 
apent  of  the  donee  to  keep  the  papers  or 
collect  the  money.  The  jury  found  that 
the  hitestate  ,iid  int'Mid  to  give  the  prop- 
erty contained  in  the  note  and  raortj?ap;e 
absolutely  to  Blanchard.  The  wholecourt 
were  to  determine  whether  or  not  the 
property  parised  and  vested  in  Blanchard, 
and  whetlier  or  not  he  nilfrht  maintain 
this  action  withotit  the  consent  of  the 
nominal  plaintiff,  for  his  own  use. 

Hour,  for  plaintiff.  Keyes  and  Farle.v, 
for  defendant. 

WILDi:,  .1.  The  jury  have  found,  that 
the  deceased  intended  to  Rive  the  iiroperty 
in  the  note,  and  in  the  mortgnfie  made  to 
secure  it,  absolutely,  to  Blauchani;  and 
the  question  is,  whether  by  the  rules  of 
law  this  intentiuD  can  be  carried  into 
effect. 

It  is  objected,  that  no  valid  gift  of  a 
chose  in  action  can  be  made  inter  vivos, 
without  writing,  and  this  objection  would 
be  well  maintained,  if  a  legal  transfer  of  a 
otiose  in  action  wife  essential  togive  effect 
to  a  gift.  But  as  a  good  and  effectual 
equit.'ible  assignment  of  a  chose  in  action 
may  be  made  l)y  pared,  and  as  courts  of 
law  take  notice  of  and  give  effect  to  sncli 
assignments,  there  seems  to  be  no  good 
foundation  for  this  objection.  It  is  true 
that  the  cases,  which  are  numerous,  in 
which  such  equitable  assignments  have 
been  supported,  are  founded    on    assign- 


ments for  a  valuable  consideration;  but 
there  is  little,  if  any,  distinction  In  this  re- 
spect, between  contracts  and  gifts  inter 
vivos;  the  latter  indeeil,  when  tiiaile  per- 
fect by  delivery  of  the  things  ijiven,  are 
executed  contracts.  2  Kent's  Coram.  CJd 
ed.H'!^-  By  delivery  and  acceptance  the 
title  ()asses,  the  gift  becomes  perfei't.  and 
Is  irrevocable.  There  is,  therefore,  no 
good  reason  why  properlv  thus  ac(|uired 
should  not  be  protected  as  fully  a nrl  effec- 
tually as  property  acipiired  bv  purchase. 
And  so  we  think  that  a  gift  of  a  chose  in 
action,  provided  ne)  clainis  of  creditors  in- 
terfere to  affect  its  validity,  ought  to 
stand  on  the  same  footing  lis  a  sale. 

The  cases  favorable  to  the  defencedo  not 
depend  on  the  question,  w  tiether  an  ns- 
signment  must  be  in  writing,  but  on  the 
question,  whether  a  legal  transfer  Is  not 
necessary  to  give  validity  to  a  donation 
of  a  chose  inaction.  The  rionation  of  a 
note  of  hand  payable  to  bearer, <irof  bank 
notes,  lottery  tickets  and  the  like,  where 
the  legal  title  iiasses  by  delivery,  is  good; 
for  by  the  form  of  the  contract  "no  written 
assignment  is  necessary;  but  as  to  all 
other  chosps  in  action,  negotiable  securi- 
ties excepted,  it  has  been  held  in  several 
cases,  that  they  are  not  sulijecls  of  dona- 
tion mortis  causa,  on  the  ground  un- 
(bjiibtedly,  for  1  can  imagine  no  other, 
that  a  legal  assignment  is  necessary  to 
give  effect  to  such  donations;  and  the 
same  reason  would  apply  to  donations  in- 
ter vivos.  The  leading  case  on  this  point 
is  that  of  Miller  v.  Miller,  :l  I'.  Wms.  ;J5(!,  In 
which  it  was  held,  that  the  gift  of  n  note, 
being  a  mere  chose  in  fiction,  could  not 
take  effect  as  a  donati<in  mortis  causa, 
because  no  property  therein  could  pass  by 
delivery,  and  an  action  thereon  must  be 
sued  in  the  name  of  the  executor.  But  In 
.Snellgrove  v.  Bnily,  '.i  Atk.  214.  Lord 
Hardwieke  decided,  that  the  gift  and  de- 
livery over  of  a  bond  wiis  good  as  a  dona- 
tion mortis  causa,  on  the  ground  that  an 
equitable  assignment  of  the  bond  was 
sulHclent.  It  seems  to  be  very  dillicult  to 
reconcile  these  two  cases.  The  disiinctloo 
suggested  by  Lord  Hardwieke  in  the  case 
of  Ward  v.  Turner,  2  Ves.  Sen.  4:!I,  io 
which  he  adheres  to  the  decision  in  Snell- 
grove V.  Bally,  is  technical,  and.  to  ray 
mind,  unsatisfactory;  and  certainly  has 
no  appli<ation  to  our  la ws,  which  place 
bends  ami  other  securities  on  the  same 
fooling.  We  cannot,  therefore,  adopt  both 
decisions  without  manifest  inconsistency; 
and  we  think,  for  the  reasons  already 
stated,  that  the  decision  in  .Snellgrove  v. 
Bail.v  is  supported  liy  the  lietter  reasons, 
anil  is  more  conformable  to  general  prin- 
ciples, and  the  modern  decisions  in  respect 
to  equitable  assignments.  We  are.  there- 
fore, ol  iMiinion  that  the  gift  of  the  note 
of  hand  in  question  is  valid:  and  in  com- 
ing to  this  conclusion,  we  cniicur  with  the 
decision  in  tlie  case  of  Wright  v.  Wright. 
1  Cowen,  .V.K,  wherein  it  was  liiOd,  that 
the  gift  and  delivery  over  of  a  promissory 
note,  mortis  causa,  is  valid  in  law,  al- 
tliough  the  legal  title  did  not  pass  by  the 
assignment. 

It  is  not  necessary  tod«^lde  whether  the 
gift  of  the  mortgage  security  is  valid,  al- 
though it  is  reported  to  have  been  said  by 


380 


GROVER  V.  GROVER. 


the  vice  chancellnr,  in  the  case  of  Piiffipld 
V.  Elwcs,  1  Siiu.  &  Stu.  248,  that  a  niort- 
gaRor  waH  not  conipellable  to  pay  the 
mortgage  debt  without  having  back  the 
mortgage  estate;  and  for  that  and  other 
reasons  he  decided,  that  a  mortgage  was 
not  a  subject  of  a  gift,  mortis  causa.  This 
decision,  however,  was  afterwards  over- 
ruled in  the  house  of  lords,  Dufiield  v. 
Elwes,  1  Uligh's  New.  K.  4!)7,  on  the 
ground,  tliat  the  gift  of  the  debt  oi)crated 
as  an  e<iuitable  assignment  of  the  mort- 
gage. But  as  we  think  it  clear,  that  the 
right  to  maintain  this  action  does  not 
depend  on  that  question,  we  give  no  opin- 
ion in  regard  to  it. 

Another  objection  is,  that  if  the  gift  was 
valid  and  complete,  by  the  delivery  of  the 
note,  it  was  annulled  by  the  redelivery  to 
the  donor.  We  think  this  objection  also 
is  unfounded.  In  the  case  of  Hunn  v 
Markham,  7  Taunt.  -.'30,  (iibbs,  C.  J.  lays 
it  down  as  a  well  settled  principle,  that  if 
after  a  donation  mortis  causa,  the  donor 
resumes  possession,  he  thereby  revokes 
and  annuls  the  donation.  This  is  the  law 
no  doubt.  Whether  there  may  not  be  an 
exception  to  this  rule,  when  the  donor 
takes  back  the  thing  given  at  the  request 
of  the  donee,  for  a  particular  purpose,  and 
agrees   to  act  as   his  agent  under  circum- 


stances negativing  every  presumption  that 
he  intended  to  revoke  his  gift,  is  a  question 
which  it  is  not  necessary  now  to  consider ; 
for  the  principle  has  no  relation  to  a  dona- 
tion inter  vivos.  When  such  a  donation  is 
completed  by  delivery,  the  property  vests 
immediately  and  irrevocably  in  tliedonee; 
and  the  donor  has  no  more  right  over  it 
than  any  other  person.  But  a  donation 
mortis  causa  does  not  pass  a  title  imme- 
diately, but  is  only  to  take  effect  on  the 
death  of  the  donor,  who  in  the  mean  time 
has  the  power  of  revocation,  anil  may  at 
anv  time  resume  possession  and  annul  the 
gift. 

The  last  objection  to  tlie  maintenance  of 
this  action  by  Blanchard,  in  the  name  of 
the  administrator,  has  been  sufiiciently 
answered  in  considering  the  first  objection. 
It  is  contended,  that  the  consent  of  the 
administrator  is  necessary.  But  if  an  eq- 
uitable assignment  issufflcient  tocompleto 
the  gift,  it  follows  that  the  administrator 
is  trustee,  and  cannot  set  up  his  legal 
right  in  order  to  defeat  the  trust.  This  is 
fully  established  by  the  case  of  Dufiield  v. 
Elvves,  1  Bligh's  New  R.  497;  Hurst  v. 
Beach,  a  Madd.  Ch.  H.  351;  and  Dufiield  v. 
Hicks,  1  Dow  &  C  1. 

Judgment  for  plaintiff  for  the  use  of 
Blanchard. 


♦ 


GRYMES  t>.  HONE. 


383 


GRYMES  T.  HONE. 

(49  N.  Y.  IT.) 

Court  of  Appeals  of  New  York.     Mar.  26,  1872. 

DcfenclaufH  teHtutor.  so  years  old  and 
fct'lile.  niaile  un  ali.-iohito  asHi;>nm«'nt  of 
bunk  Htock  to  li's  Kranddauuhtcr.  and  dc- 
livcrpd  tilt'  a8si;;iinieiit  to  Iuh  wife,  witli 
instructions  t(»  deliver  it  to  the  jjrand- 
daii!;;liter  In  ease  of  lii.s  death.  Kive 
months  afterwards  he  died.  The  ntuck 
had  not  been  transferred  on  the  bank 
bookH. 

Jolin  II.  Reynolds,  for  appellant.  Or- 
lando Meads,  for  reapoudenC. 

PF;cKnA.\I,  J.  On  the  19th  of  AiiRUst, 
ls()7,  tile  alli'jied  donor  heinR  the  owner  of 
one  hundred  and  twenty  sharen  of  Htcjck, 
Included  in  <»ne  certitieate,  in  the  Bank  of 
Conjmeree  of  .Vew  York  city,  made  an  ali- 
Holute  asHijrnini  nt  in  writinc.  tran.sferat)le 
on  the  book.s  of  the  bank  on  the  Hurrender 
of  the  certificate,  under.senl  and  witnessed, 
of  twenty  shares  thereof  to  this  plaintiff, 
his  favorite  KranddnuKhter,  for  value  re- 
ceived, as  tlie  assignment  purports,  and 
appointed  her  his  attorney  irrevocable  to 
sell  and  transfer  the  same  to  her  use.  Aft- 
er this  paper  had  been  signed  "he  kept  it 
by  him  for  awhile"  (how  long  nowhere 
appears),  and  afterward  handed  it  to  his 
wife,  to  put  with  the  will  and  other  pa- 
pers in  a  tin  box  she  had.  Wlien  he  gave  to 
his  wife  the  paper  so  drawn,  he  said:  "I 
intend  this  for  Nelly.  If  1  die,  don't  give 
this  to  the  executors;  it  isn't  for  tliem, 
but  for  .N'elly;  give  it  t(j  her,  herself."  .She 
aski'il,  "  Why  not  give  it  to  her  now'.'" 
"Well."  he  said,  "  better  keep  it  for  the  | 
present;  I  don't  know  how  much  longer  I 
may  last  or  what  may  happen,  or  wheth- 
er we  may  not  need  it."  This  is  the  state- 
ment as  given  by  the  widow  of  donor. 
It  was  admitted  that  at  the  time  of  exe- 
cuting said  instrument  the  donor  was 
from  seventy-eight  to  eighty  years  of  age, 
was  in  failing  health,  and  so  continued 
till  his  death.  .January  '2ii,  isds.  L'pon 
these  facts  was  there  a  valid  gift  mortis 
eausa'.' 

I'|)on  the  question  as  to  what  consti-  , 
tutes  such  a  gift,  the  authorities  are  in- 1 
finite,  not  always  consistent.  I?nt  at  this 
time  it  is  generally  agreed  that  to  consti- 
tute such  ;i  gift,  it  must  be  made  with  a 
View  to  the  donor's  death  from  iiresent  ill- 
ness, or  from  external  and  apprehended 
peril.  It  is  not  necessary  that  the  donor 
should  l)e  in  extremis,  but  he  should  die  of 
that  ailment.  If  he  recover  from  the  ill- 
ness or  survive  the  peril  the  gift  thereby 
becomes  void:  and  until  death  it  is  sub- 
ject to  his  personal  revocation.  '.'  Kent 
Com.4J4,  an<l  ce.ses  cited:  2  Kedf.  Wills, 
2i»i)  ct  se«i.;  1  Story  Kq.  .lur.,  §  (>06,  etc., 
notes  and  authorities.  I 

In  the  next  place  there  nnist  he   a   deliv- ) 
ery  of  it  to  the  donee   or   to   some   person 
for  him,  and  the  gift  becomes  perfected  by 
the  diath  of  the  donor. 

Three  things  are  necessary.  1.  It  must 
be  made  with  a  view  to  donor's  death.  1*.  i 
The  donor  must  die  of  that  ailment  or 
peril.     3.  There  must  be   a   delivery.     The  | 


appellant  inslBts  that  the  gift  In  this  case 
fullills   neither  requisition. 

Was  this  gift  made  with  a  view  to  the 
donor's  death'.'  It  issofound  bv  the  referee 
as  a  question  of  fact.  What  the  witness 
intended  to  convey  by  the  term  "falling 
health  "  is  not  clear;  but  intendments  are 
against  the  appellant  where  the  fact  Is  left 
uncertain.  There  Is  nothing  In  the  case 
inconsistent  with  the  idea  that  the  tes- 
tator, when  ho  signed  this  assignment, 
was  conlined  to  his  bed  and  so  continued 
till  his  death  ;  though  I  do  not  wish  to  he 
understood  as  saying  that  such  confine- 
ment was  necessary  to  validate  the  gift. 
It  seems  that  he  died,  as  the  referee  finds, 
from  this  failing  health.  In  five  months 
thereafter;  so  that  the  terms  as  used  in- 
(licated  a  very  serious  ailment. 

True  he  did  not,  and  of  course  could 
not,  know  when  death  woidd  occur  when 
he  executed  this  assignment,  but  he  was 
ina|)prehpnsionof  it.  His  age  a  ml  his  "fail- 
ing" told  him  death  was  near,  but  when 
it  might  occur  he  had  no  clear  conviction. 
.\n  ailment  at  such  an  age  is  extremely  ad- 
monitory. 

From  these  facts,  can  this  court  say  as 
matter  of  law,  that  this  testator  was  not 
so  seriously  ill  when  he  executed  this  as- 
signment as  to  be  ai>preliensive  of  death; 
that  he  was  not  legally  acting  "in  view" 
of  death;  tnat  he  was  not  so  ill  as  t<i  be 
permitted  to  make  this  sort  of  gift'.'  True, 
the  donor  died  live  motiths  thereafter; 
but  -we  are  referred  to  no  case  or  principle 
that  limits  the  time  within  which  the 
donor  must  die  to  make  such  a  gift  valid. 
The  only  rule  is  that  he  must  not  recover 
from  that  illness.  If  he  do,  the  gift  is 
avoideil.  Tlie  authoritii-s  cited  bv  the  ap- 
pellant's couns.l,  of  Weston  v.  Might,  17 
Me.  2X7,  :!j  Am.  Dec.  '2.")U,  ami  Stanihind  v. 
Willott,  a  .Mc.N.  &  (i.  (KU.  are  both  in- 
stances of  recovery,  and  the  gifts  on  that 
ground  declared  void.  In  the  latter  the 
donor  and  his  committee  recovereil  back 
the  stocks  given,  because  of  his  recovery. 
The  lirst  case  is  improperly  ijuoted  in  2 
I!edf.  .'iu(l,  note  11,  as  not  originally  au- 
thorizing the  gift. 

'I  he  declaration  of  the  donor  that  his 
wife  should  keep  the  assignment  and  not 
hand  it  over  until  after  his  death,  as  he 
did  not  know  what  might  happen,  nor 
hut  that  they  might  need  it,  was  simply  a 
statement  of  the  law  as  to  such  a  gift, 
whether  the  declaration  was  or  was  not 
made.  Clearly  he  could  not  tell  whether 
he  should  die  or  rccoverfrom  that  ailment. 
If  he  did  recover  the  law  holds  the  gift 
void. 

The  transaction  as  to  such  a  gift  Is,  the 
donor  says  I  am  111,  and  fear  I  shall  die 
of  this  illm'ss,  wherefore  I  wish  you  to 
take  these  tilings  and  hand  them  to  my 
granddaughterafter  mydeath:  bntdonot 
hand  them  to  her  now,  as  I  may  nvover 
and  need  them.  .\  good  ilonatio  mortis 
causa  always  implies  all  this.  If  dellvereil 
absolutely  to  the  rlonec  in  person,  the  law 
lndds  it  void  in  case  the  donor  nvovcrs, 
and  he  may  then  reclaim  It.  .Stauiland  v. 
Willott,  supra. 

To  make  a  valid  gift  mortis  causn.  It  is 
not  necessary  that  there  should  l)e  any  ex- 
press qualitication  in   the    transfer   or   the 


384 


GRYMES  V.  HONE. 


dolivery.  It  may  be  found  to  be  such  h 
Kift  fruni  the  attending  cirounistances, 
though  the  written  transfer  and  the  deliv- 
ery may  be  abnolute.     Nee  the  last  case. 

i  think  tliis  donor  made  tliis  gift  "  with 
u  view  tohisdeatli,"  within  the  meaning 
of  the  rule  on  that  subject. 

2d.  This  also  settles  thesecond  requisite, 
as  it  is  admitted  tliat  he  did  not  recover, 
hut  died  of  tliis  "failing  health,"  as  it  is 
expressed. 

3d.  Was  there  a  delivery?  The  assign- 
ment was  delivered  to  his  wife  for  the 
donee.  She  thus  became  the  agent  of  the 
donor.  So  far  as  the  mere  delivery  is  con- 
cerned this  is  sufficient.  Seethe  elementary 
writers  before  cited;  also  Drury  v.  Smith, 
1  P.  Wms.  404;  Sessions  v.  Moseley,  4 
Cush.  S7;  Coutant  v.  Schuyler,  1  Paige, 
316;  Borneman  v.  Sidlinger,  8  Shep.  IS,"); 
Wells  v.  Tucker,  3  Binn.  .300;  Hunter  v. 
Hunter,  19  Barb.  031.  Such  a  delivery  to 
be  given  to  the  grantee  after  the  grantor's 
death  is  good  as  to  a  deed  of  real  estate. 
Hathaway  v.  Payne,  34  N.  Y.  92. 

It  is  urged  that  this  gift  was  not  com- 
pleted; that  thestock  was  not  transferred 
on  the  books  of  the  bank,  and  could  not 
be  until  the  certificate  held  by  the  ilonor 
was  surrendered,  and  that  equity  will  not 
aid  volunteers  to  perfect  an  imperfect  gift. 

Within  the  modern  authorities  this  gift 
was  valid,  notwithstanding  these  oI)jec- 
tions.  The  donor  by  this  assignment  and 
power,  parted  with  all  the  interest  in  the 
stock  assigned  as  between  him  and  the 
donee,  and  the  donee  became  the  ecjuitable 
owner  thereof  as  against  every  pei'son  but 
a  bona  fide  purchaser  without  notice.  De- 
livery of  the  stock  certificate  without  a 
transfer  on  the  bank's  books  would  have 
made  no  more  than  an  equitable  title  as 
against  the  bank  (N.  Y.  &.  N.  H.  R.  Co.  v. 
Schuyler,  34  N.  Y.  ISO,  and  cases  cited), 
though  it  wc>uld  give  a  legal  title  as 
against  the  assign<jr  (McNeil  v.  Tenth 
Nat.  Bank,  46  N.  Y.  :i25,  7  Am.  Rep.  341, 
just  decided),  and  according  to  the  case  of 


Duflield  V.  Elwes,  1  Bligh  (N.  R.),  497,  .'')30, 
decided  in  the  house  of  lor<l8.  The  repre- 
sentatives of  tlie  donor  were  trustees  for 
the  donee  by  operation  of  law  to  make 
the  gift  effectual.  See  also  to  the  same 
effect  Ex  parte  Pye,  IS  Ves.  140;  Kekewieh 
v.  Manning,  1  Ue  G.,M.  &  (.).  176;  Richard- 
son v.  Richardson,  I.,.  R.  3  Eq.Cas.CM6.  This 
trust,  like  this  species  of  gift,  is  peculiar. 
The  trust,  like  the  gift,  is  revocable  during 
the  donor's  life,  and  is  perfected  and  irrev- 
ocable by  his  deatli. 

This  extended  the  law  as  laid  down  by 
Lord  Hardwicke,  in  Ward  v.  Turner,  2 
Ves.  Sr.  431,  442,  upon  this  subject,  and 
our  courts  have  gone  in  thesaniedireetion 
with  Dufiield  v.  Elwes.  Where  notes  pay- 
able to  the  donor's  order  and  not  in- 
dorsed, and  other  things  of  similar  char- 
acter, have  been  given  mortis  causa, 
courts  compel  the  representatives  of  the 
donor  to  allow  the  donee  to  sue  in  their 
name,  though  the  legal  title  has  not 
passed.  See  last  case;  Grover  v.  Grover.  24 
Pick.  261,  3."i  Am.  Dec.  31'.);  Chase  v.  Red- 
ding, 13  Gray,  41S;  Bates  v.  Kempton,  7 
id.  3S2;  and  see  also  Westerlo  v.  I)e  Witt, 
36  N.  Y.  340,  93  Am.  Dec.  517;  Walsh  v. 
Sexton,  5.')  Barb.  2.M. 

The  eijuitable  title  to  this  stock  is  thus 
passed  by  the  assignment,  and  it  was  not 
necessary  to  hand  over  the  certificate.  A 
court  of  equity  will  compel  the  donor's 
representatives  to  produce  the  certificate, 
that  the  legal  title  to  the  stock  may  be 
perfected. 

As  there  is  great  danger  of  fraud  in  this 
sort  of  gift,  courts  cannot  be  too  cautious 
in  recpiiring  clear  proof  of  the  transaction. 
This  has  been  the  rule  from  the  early  days 
of  the  civil  la w  ( wliich  required  five  wit- 
nesses to  such  !\  gift)  down  to  the  present 
time.  In  this  case  the  proof  of  the  assign- 
ment, etc.,  is  entirely  clear,  the  question 
being  as  to  its  effect.  The  judgment 
should  be  affirmed,  with  costs  to  be  paid 
out  of  the  estate. 

All  concur;  ALEEN,  J.,  not  voting. 


HAGUE  V.  PORTER. 


387 


HAGUE  et  al.  t.  PORTER. 


Suprem( 


(3  Hill,  141.) 
Court  of  New   York.    July,  1842 


Action  Ijy  Hague  ami  Reiifield  aKxinst 
•one  I'orter  for  kooiIh  Hold  and  delivered. 
JiKlKnicnt  for  defciidiint,  and  plaintiffH 
brirm  error.     Allirincil. 

Defciidant,  a  iiiercliant  in  New  York, 
agrieil  to  take  of  [jlaintiffpt,  iloin;;  liUHines^ 
in  Newark,  N.  .1.,  two  do/.pn  lainpH,  which 
wei'e  [laid  for  and  delivered.  At  the  Hanie 
time  (lefendaut  ordered  100  more  lampH  of 
the  Kunie  kind,  to  be  made  and  delivered 
an  soon  aH  practicalile.  Suhse(inently  de- 
fendant KUKKested  an  alteration  to  t)e 
made  in  the  100lam[)H  soordered,  and  they 
were  completed  an  directed,  and  sent  to 
defendant'.s  store.  Defendant  refused  to 
receive  the  lamps,  ancl  they  were  left  on 
the  sidewalk.  The  court  below  directed  a 
nonsuit,  on  tlie  ;;round  that  there  was  no 
proof  of  delivery. 

R.  N.  Morrison,  for  plaintiffs  in  error. 
€.  W.  Van  Voorhis,  for  defendant  in  error. 

COWEN,  J.  Here  was  no  actual  deliv- 
ery and  acceptance  by  the  defendant  be- 
low. The  contract  was  executory,  and 
he  refused  to  receive.  It  was  scarcely  a 
case  of  goods  bargained    and   sold.i     The 


'  Something  roiiiainc*!  to  he  done  to  the  l.imps, 
at  the  time  tlicy  were  ordered,  before  they  were 
ready  for  delivery;  and  hence  the  sale  was  in- 
complete. (See  Downer  v.  Thompson,  2  Hill, 
137.) 


count  should.  I  apprehend,  have  been  spe- 
cial, for  refusInK  to  accept.  All  the  cases 
on  this  point  were  considered  In  .Mkiiison 
V.  Bell,  {'>  .Man.  &  Ityl.  l':ij.  s  I'.arn.Ac  Cress. 
277,  S.  C..)  and  the  subject  entirely  ex- 
hausted: indeed  the  case  itself  is  directly 
OKaiust  the  plaintiff  in  error.  The  con- 
tract for  the  two  dozen  bimpH  was  dis- 
tinct, and  th(!  delivery  of  these  bore  no 
relation  to  the  one  hundred  in  question. 
(Thompson  v.  Maceroid,  3  Itarn.  &  Cress. 
1.) 

The  case  of  Downer  v.  ThompHon,  (2 
Hill,  ]:!7,)  or  rather  the  dictum  cited  from 
that  case,  went  on  the  assntiiption  that 
there  had  been  a  delivery  to  and  accept- 
ance by  the  carrier  with  the  as.sent  of  the 
ven<lee.2  That  is  a  constructive  delivery 
to  the  vendee  himself,  and  sntihtiesa  count 
for  goods  sold  and  delivered,  the  same  as 
a  personal  delivery  to  and  acceptance  by 
him.  If  he  order  goods  to  be  sent  by  a 
carrier,  though  he  do  not  n.inie  him.  and 
they  are  sent  accordingly,  that  is  a  deliv- 
ery. (I)utton  v.  Solomonson,  3  Hos.  & 
Pull.  .')S'_'.)  Such  direction  may  certainly 
be  implied  from  the  course  of  trade;  but 
1  do  not  see  here  any  direction  so  to  send, 
either  express  or  implied.  The  practice 
between  Newark  and  New  York  is  not 
shown.  There  was  no  dispute  in  the  cases 
cited  that  the  goods  were  to  be  sent  by  a 
carrier,  nor  that  they  were  so  sent  pursu- 
ant to  order. 

iludgment  affirmed. 


'And   see  Grosvenor  &   Starr  t.   Phillips,   (2 
Hill,  147.) 


I 


HANSON  0.  BUSSE. 


389 


HANSON  et  al.  v.  BUSSE. 

(45  III.  496.) 

Supreme  Court  of  Illinois.     Sept.  Term,  18C7. 

Action  by  Ralph  HmiBon  and  another 
ji^aiiiHt  Frederick  liiiKHf.  From  a  judf;- 
iiu'iit  for  defendant,  pluiutiffH  apijeal.  Af- 
lirnied. 

Blod^ett  &  Winston,  for  appellants. 
Tlioinan  Shirley,  for  appellee. 

LAWKI:N(;E,  .J.  This  was  action, 
liroiight  by  Hanson  anil  Barrett,  againHt 
liiiHse,  to  recover  tlie  price  of  one  hundred 
and  ten  barrels  of  apples,  sold  by  them 
to  BuKse.  The  demand  was  resisted,  on 
theKronnd  that  the  apples,  when  opened, 
proved  to  lie  decayed  and  entirely  worth- 
less. The  jury  found  for  the  defendant 
and  the  plaintiffs  appealed. 

The  court  Kave  for  the  defendant  a  se- 
ries of  instruction.s,  neai'l^-  all  of  which 
embody  the  idea,  that  if  the  plaintiffs 
represented  the  apples  to  be  Ktxjd,  and 
the  defendant  bought  them,  relyin>^  upon 
such  representations,  and  they  were  bad 
and  unmerchantable,  and  the  defendant 
offered,  at  once,  to  return  them,  he  would 
not  be  liable  for  the  price. 

In  reference  to  the  sale  of  personal  prop- 
erty, which  is  open  to  the  inspection  and 
c.Kamination  of  the  purchaser,  this  would 
not  l)e  the  law.  In  such  cases  it  is  imma- 
terial how  far  the  purchaser  may  rely  up- 
on the  representations  of  the  vendor  as 
to  the  (|uality  of  the  goods,  if  there  was 
no  intention  on  the  part  of  the  vendor  to 
warrant,  and  if  he  used  no  lanKunge  fair- 
ly implying  such  an  intent.  The  different 
rule  of  the  civil  law  may  be  founded  on 
higher  morals,  and  the  modern  decisions, 
both  in  ICngland  and  this  country,  seem 
to  be  tending  in  that  direction.  This  ten- 
dency is  shown  in  the  recognition  of  ex- 
cei)tions  to  the  rule.  But  the  rule  itself 
must  be  considered  (irmly  settled  in  the 
common  law,  that  tlie  vendor  of  goods 
which  the  purchaser  has.  at  the  time  of 
inirchase,  the  opportunity  of  examining,  is 
not  responsible  for  defects  of  ijuality,  in 
the  absence  of  frauil  and  warranty;  and 
although  no  particular  form  of  words  is 
re<|uisite  to  constitute  a  warranty,  yet  a 
simple  commendation  of  the  goods,  or  a 
representation  that  they  are  of  a  certain 
quality  does  not  make  a  warranty,  unless 
the  language  of  the  vendor,  taken  in  con- 
nection with  the  circumstancesof  the  sale, 
fairly  implies  an  intention,  on  his  part,  to 
bo  nnderstood  as  warranting.  The  rule 
lias   been  thus  laid  down  by  this  court  in 


several  cases.  Towell  v.  Gutewood,  2 
Scam.  22;  Adams  v.  Johnson,  15  111.  34u, 
and  Kohl  v.  Lindley,  3'J  id.  ]'.15.  In  the 
last  case  the  role  is  fully  considered. 

But,  although  these  instructions  would 
be  erroneous  if  applied  to  ordinary  sales 
of  personal  property  open  to  Inspection, 
yet  they  nuist  be  consi<lered  in  reference 
to  theii-  application  to  this  particular 
case,  and.  tried  by  that  standard,  we  can- 
not say  they  misled  the  jury.  Asstateilby 
this  court  in  Kohl  v.  Linilley,  above  quot- 
ed, one  of  the  exceptions  to  the  general 
rule  is,  where  the  sale  is  made  by  sample, 
and  another,  where  the  purchaser  has  no 
opportunity  for  inspection.  The  bulk 
must  be  as  good  as  the  sample,  and.  If 
there  i-i  no  opportunity  for  examination, 
the  article  sold  must  be  what  the  vendor 
represents  it  to  be.  In  such  cases  the 
maxim  i^aveat  emptor  can  have  no  appli- 
cation. 

Ill  the  case  before  us  the  proof  shows 
that  the  110  barrels  were  piled  up  in  tiers 
at  a  railway  depot  in  Chicago.  The  [inr- 
chnser  went  with  the  clerk  of  the  plain- 
tiffs to  look  at  them.  They  opened  a 
couple  ol  barrels  that  stood  on  the  tloor. 
The  purchaser  was lamefrom  rheumatism, 
and  requested  tlie  clerk  to  climb  up  and 
oi)en  a  barrel  on  the  top  of  the  tiers.  He 
did  so,  and  showed  the  purchaser  some 
upi)les  which  were  in  good  condition, 
and  said  they  were  all  like  that.  The 
I)laintiff8  had  told  the  delendant  the  ap- 
ples were  just  such  as  he  had  previuusly 
l)Oughf,  shippetl  by  the  same  man,  and 
good  handpicked  fruit.  The  apples  in  the 
three  barrels  exhibited  as  saiu|iles  were 
unqnestional)ly  merchantable,  or  the  tlc- 
fendant  would  not  have  l)ought.  It 
would  be  unreasonable  to  reijuire  that  he 
should  hnveoi'ened  every  one  of  the  110 
barrels.  He  had  the  right  to  rely  on  the 
samples  shown  to  him,  and  on  the  repre- 
sentations of  the  plaintiffs  that  the  aiiples 
were  good.  He  had  no  opportunity  for 
the  exercise  of  his  own  judgment,  and 
the  plaintiffs  must  have  known  that  he 
bought  relying  upon  their  representa- 
tions. The  case  falls  clearly  within  the 
exceptions  1o  the  general  rule  above  men- 
tioned, and  there  is  no  ground  for  saying 
caveat  emptor.  The  verdict  was  Jnt-t.  and 
the  instructions  as  applied  to  the  facts  of 
this  case  could  not  have  misled  the  jury. 

The  plaintiffs'  instructions  were  pro[)cr- 
ly  refused,  because  inapplicable  to  the 
facts  of  this  case.  They  would  have 
tended  to  mislead  the  jury. 

The  judgment  must  be  affirmed. 

.ludgment  affirmed. 


IIARDMAN   V.  BOOTH. 


3'Jl 


I 


HAIIDMAN  ct  al.  v.  ROOTII. 

a   Hurl.  &  C.  8<i:!.) 

EiiBlisli  Court  of  Exchequer,  flilary  Term,  20 
Vict.  Jan.  12,  IStiS. 

Ti'ovor  for  twenty-two  pieces  of  Herne 
anil  eiirlity-two  pieces  of  woollen  linin^rs 
of  the  plnintiffH. 

I'IcMH. —  KirHt:  Not  guilty.  Second: 
that  the  ko'"'**  "re  not  the  plaintiffs'. — 
IssucM  tlioreoi). 

At  tlie  trial,  before  Martin,  I!.,  at  the 
London  sittinfiM  after  last  J  rinity  term, 
the  following  factw  appearefl. — Tlie  jilain- 
tiffs  were  worsted  nianiifacturerH  at  Unw- 
tonstall,  near  Manclie.ster.  and  they  ein- 
j)l<iyed  MessrH.  HukIick  and  Kcijililey  aH 
their  London  aKcntH.  In  .May,  iMil'.  one  of 
the  plainliffH  lieiiiK  in  London,  atid  having 
heard  of  a  firm  oi  (inndeli  &  Co.,  in  .loin- 
ers'  Hall  Buihlinas,  Upper  Thames  street, 
called,  with  Keifihley,  at  thorfe  pretniwes 
and  inquired  for  .MeHHrs.tJandell.  At  that 
time  the  firm,  which  had  been  estalillKlied 
ei;^hty  or  ninety  years,  and  was  well 
known,  couHisted  only  of  ThoniiisGandell, 
%vho  was  old  and  in  bad  healtli;  and  liiw 
son,  who  wa.s  hiw  clerk,  managed  tlie  bus- 
iness. Thelirm  of  (iandell  &  C<i.  was  only 
known  to  the  plaintiff  and  KeiKliley  by 
reputation,  an<l,  on  their  iiKjuiriuK  for 
Messrs.  (Jandell.  one  of  the  workmen  di- 
rected them  t<i  the  conntiiiir  house,  where 
they  found  Ldwnrd  (iandell.  Keii'hiey 
said,  "1  believe  yon  are  a  buyer  of  the 
class  of  noods  .Mr.  Ilnrdman  is  makinsi." 
and  introduced  the  plaintiff  to  him.  After 
some  conversation,  and  when  they  were 
about  to  leave,  I'Mward  (iandell  said, 
■'  We  are  government  packers,  but  weha  ve 
a  shipping  connection  that  we  sometimes 
buy  for,  and  I  have  no  doubt  we  shall  be 
able  to  do  a  little  business  together."  On 
leaving,  the  plaintiff  began  to  copy  the 
name  from  the  door-post,  when  Kdward 
(ian<lell  handed  him  a  printed  card,  hav- 
ing on  it:  "Thomas  (iaiiilell  &  Co.,  Pack- 
ers, Joiners'  Hall  Uuildings,  7!t  Upper 
Thames  Stieet."  Keighley  had  twosub- 
seijui'iit  interviews  witli  Kdward  (iamlell, 
at  the  lirst  of  which  he  introduced  hini  to 
one  'I'odil.  The  goods  in  (inestion  were 
order'd  by  Kdward  (iandell,  anil  sent  at 
two  different  times  inJul.v.  The  first  lot 
was  sent  to  Joiners'  Hall  Buildings,  and 
n  receipt  for  it  was  given  by  one  ol  (ian- 
dell &  ('o.'s  men;  the  other  lot  was  taken 
away  in  a  cart  of  (Iandell  &  Co.,  which 
Edward  (iandell  had  offered  tosend  for  it. 
^'he  plaintiff  drew  a  liill  of  exchange  for 
the  first  lot  of  goods  on  "  .Messrs.  Thomas 
Gandell  &  Co.";  but,  at  the  reipiest  of  ICd- 
ward  (iandell.  the  name  was  altered  to 
"Edwaril."  The  invoice  for  l)oth  lots  was 
headed:— "Mesrs.  Edward  (iandell  &  Co., 
Joiners'  Hall  Uuildings,  Upper  Thames 
Street,  London.  Bought  of  Hardman, 
Brothers,  per  William  Hughes  it  Co." 
Edward  (iandell  carried  on  business  in 
partnership  with  Todd,  whom  he  intro- 
duced to  Keighley,  and  who  had  an  othce 
in  Size  Lane.  Neither  the  plaintiff  nor 
Keighley  knew  of  the  lirm  of  (iandell  iV- 
Todd.  The  goods  were  pledged  by  Ed- 
ward Ouodell  to  the  defendant,  who  wae 


an  auctioneer,  with  a  [lower  of  sale,  as  b 
security  for  £:}()()  l)ona  fide  advanced  hv 
the  defendant  to  (iandell  A:  Todd.  Short- 
ly afterwards  Gandell  &  Todd  tiecame 
bankrufit;  and  the  defendant.  In  pursu- 
ance of  the  power,  sold  the  goods  liy  aiiP- 
tion  for  t:M4,  and  retained  £.'!(»(),  and  paid 
over  t;J4  to  tlie  assignees. 

It  was  submitted,  on  liehalf  of  the  de- 
fendant, that  the  action  was  not  main- 
tainable, inasmuch  as  there  was  a  sale  of 
the  goods  to  Edward  (iandell.  The 
learned  judge  non-suited  the  plaintiffs, 
reserving  leave  to  move  to  enter  the  ver- 
dict for  them  for  t:U4. 

Balhintine,  Serjt.,  in  last  Mid'aelmas 
term,  obtained  a  rule  nisi  accordingly,  on 
the  ground  that  no  proiierty  passed  lt> 
Edward  (iandell  in  consei|Uence  of  his 
fraud,  and  therefure  the  defendant  was 
liable  for  the  valui"  of  the  goods.  Hawk- 
ins now  shewed  cause,  (iiffurd  and  Po- 
land, in  support  of  the  rule. 

FtH.LOCK.C.  B.— 1  am  of  opinion  that 
the  rule  should  be  absolute.  Tlie  firot 
question  is  whether  there  was  a  contract. 
It  is  difficult  to  lay  down  any  general  rule 
by  which,  at  all  tiiiie-<  and  nnder  nil  cir- 
cumstances, it  may  be  delermim-d  wheth- 
er or  no  there  is  a  contract  voidable  at 
the  option  of  the  party  defrauded,  Ijut  in 
this  ease  I  tl'.ink  it  cl^-ar  that  there  waH 
no  contract.  Mr.  Hawkins  contendei) 
that  there  was  a  contract  iiersonally  with 
Edward  (iamlell.  the  individual  witli 
whom  the  conversations  took  place.  It 
is  true  that  tlie  words  were  uttered  by 
i;nil  to  <iim,  but  the  plainliff><  supposed 
that  they  were  dealing  with  (iandell  & 
Co.,  the  packers,  to  whom  I  hey  sent  tlie 
goods;  the  fact  tieiiig  that  Edward  (Jan- 
dell was  not  a  member  of  that  tirm  and 
had  no  authority  to  ;ict  as  their  agent. 
Therefore  at  no  period  of  time  were  there 
two  consenting  minds  to  the  same  agree- 
ment. Then,  what  is  tlie  consequence? 
A  person  having  no  antl'.ority  whatever 
over  the  goods  sends  them  to  the  defend- 
ant, an  auctioneer,  who,  supposing  the 
goods  belong  to  that  person,  bona  lide 
advances  money  upon  them,  taking  a 
power  of  sale;  but  that  did  not  authorize 
him  to  sell  another  person's  goods  and 
retain    the  proceeds    to  reimburse  himself. 

1  think  that  he  is  liable  to  the  e.\tent  of 
the  money  realized  by  th"  sale,  and  that 
the  rule  should  be  absolute  to  enter  the 
verdict  for  that  amount. 

MAT5TIN,  B.— I  am  also  of  opinion  that 
there  was  no  contract.  I  cannot  doubt 
that  the  plaintiffs  believed  that  they  were 
dealing  with  (iandell  \-  Co.,  the  packers. 
The  cases  cited  are  quite  correct;  and  If 
(iandell  &  Co.  had  obtained  the  goods  liy 
means  of  fraud,  the  plaintiffs  might  have 
been  precluded  from  recovering.  But  the 
case  is  very  different.  The  goods  wen*  ob- 
tained bythe  fraud  of  Ivdward  (iandell, 
who  iiret'eiiiled  that  he  was  a  iiieniber  of 
the  lirm  of  (i.iiidell  &  Co..  and  led  the 
plaintiffs  to  lielleve  that  they  were  ilenlinK 
witli  (iamlell  A:  Co.  The  only  doiilit  I 
have  had  was  whether  there  oiiglil  not  to 
lie  a  new  trial,  in  order  that  the  question 


892 


HAEDMAN  v.  BOOTH. 


mislit  he  submitted  to  a  jury;  but  I  do 
not  think  it  rlfjlit  to  Henil  dowu  tlie  case 
for  a  new  trial,  for  it  is  clear  tliat  the 
plaintiffs  believed  that  tliey  were  dealing 
with  Gandell  &  Co.,  and  therefore  there 
was  no  contract. 

CHANNELL,  B. — I  am  also  of  opinion 
that  there  ought  not  to  be  a  new  trial, 
but  that  the  rule  ought  to  be  absolute  to 
enter  the  verdict  for  the  plaintiffs.  I  do 
not  thinii  tliat  the  defendant  was  in  the 
position  of  a  mere  couduit-pipe,  as  a  car- 
man would  have  been;  but  that  he  is  re- 
eponsible  for  the  conversion  of  the  goods, 
and  the  plaintiffs  are  entitled  to  recover 
provided  the  goods  bek)ng  to  thera. 
There  is  no  doubt  they  were  originally  the 
plaintiffs'  goods,  and  they  must  still  be 
theirs  unless  there  has  been  u  contract  of 
sale  to  divest  the  property.  It  is  not  sug- 
gested that  there  was  a  sale  to  Uandell  & 
Co.;  and  1  do  not  think  there  was  a  sale 
to  (iJaudell  &  Todd,  or  either  of  them,  so 
as  to  render  a  repudiation  of  the  contract 
by  the  plaintiffs  necessary,  for  it  is  evident 
that  the  yjlaintlffs  l)elieved  that  they  were 
dealing  with  Gandell  «&  Co.,  and  never 
meant  to  contract  with   Gandell  &  Todd. 


WILDE,  B. — I  am  of  the  same  opinion. 
The  defendant  made  advam'os  to  Gandell 
&  Todd  upon  the  security  of  the  goods, 
and  under  a  power  of  sale  he  sold  them 
to  recoup  himself.  The  defendant  now 
sets  up  a  contract,  voidable  he  admits,  t)e- 
tween  the  plaintiffs  and  Edward  Gandell; 
and  if  there  had  been  such  a  contract,  and 
the  defendant  had  sold  the  goods  before 
the  plaintiffs  repudiated  it,  no  doul)t  the 
defendant  would  have  had  a  good  defense. 
The  real  question  therefore  is,  whether 
there  has  been  such  a  dealing  as  amounts 
to  a  sale.  It  is  clear  thai  there  was  no 
sale  to  Gandell  &  Co.,  because  they  never 
authorized  Edward  Gandell  to  pnrcliase 
for  them  ;  and  it  is  equallyclear  that  there 
was  no  sale  to  Edward  Gandell,  because 
the  plaintiffs  never  intended  to  deal  with 
liim  personally.  The  fact  of  his  name  be- 
ing Gandell  cannot  affect  the  question, 
inasmuch  as  the  dealing  was  not  with  him 
personally,  but  under  the  belief  that  he 
represented  the  firm  of  Gandell  &  Co.  The 
result  is  that  there  was  no  contract,  and 
the  evidence  is  too  strong  to  render  it 
worth  while  to  submit  the  case  again 
to  a  jury. 

Kule  absolute. 


I 

I 


I 


IIAUKNKSS  0.  Ui;.SSKLL  &  CO.  395 

HAUKXESS   V.   RI.'SSELL  &   CO.  I  iir-tc.l.       P.    O..    Oxford.    On.-l.ln     County, 

JMiiiio    territory.      if.W).      IMii-Inn    &    Fer- 
(7  Sup.  Ct.  Uep.  51,  118  U.  S.  G03.)  KUM(jn."    Some  of  tin- iiotcH  wi-rr  jjlven  lor 

the  price  of  one  of  the  ciiKincH  witli  itM   nc- 

Suprcme  Court  of  the  Uuiteil  .Slatrs.     Nov.  8,    coiiipiiiiyiiiK      lioiler    iiikI     iiiill,    iiiiil     the 

ISSC.  otIierH  for  the  prioe  of  ilie  otiiir.     .Some  of 

the  riotcw  were  paid;  iinil    tin'  preHcnt  Huit 

A|)i)ealfrom  tlie  supreme  court  of  tlie  vv';ih  liroiiKlit  on  those  tliul  urrc  not  paid, 
territoi'y  of  I,  tail.  The  property  wan  iJilivereil    to    I'heJHii    & 

Tlie  facts  fully  appear  in  tlie  followinj;  I'er^vison  on  the  e.xeniiion  of  the  uoteH, 
statement  by  Mr.  jimtice  I!U.\1);.,KV  :  and  Knl).>.e(|iieiitly  tliey  Holrl    it    to    the   de 

This  was  an  appeal  fioin  thesupreme  feiidan t  llarl<nenH.  in  part  payment  of  u 
court  of  I'tali.  The  action  was  lirouKl't  deht  due  from  t  hem  to  liiin  ami  one  I.aiiKH- 
in  the 'list  rid  court  for  Weber  county,  to  (loif.  The  defendant,  at  the  tiinx  of  the 
recover  the  value  of  two  stea ui-enKiiies  sale  to  him,  knew  that  the  puri-liase  price 
anil  boilers,  and  a  portable  saw -mill  con- ,  of  t  he  property  had  not  been  paid  to  the 
nectcd  with  each  engine.  A  jury  bein>r  ,  plaintiff,  and  that  the  plaintiff  claimiil 
waived,  the  court  found  the  fac'^s,  and  !  title  thereto  until  such  pa  vment  was  made, 
rendered  judKment  for  the  plaintiff,  I!us- I  The  unpaid  notes  u'iven  for  each  engine 
Hell  &  Co.  The  plaintiff  is  an  Ohio  corpo-  and  mill  e.vceedecl  in  amcuinl  the  vjilue  of 
ration,  and  by  its  at;ent  in  lil;\lio,  on  the  such  eiiiciuf  and  mill  when  the  action  was 
second    of    October,    lss2,    a;;reed    with     a    commenced. 

partnei'ship  tirm  by  the  name  of  I'lielan  The  territory  of  Idaho  has  a  law  relat- 
&  FernusiMi,  residents  of  Idaho,  to  sell  to  inir  to  chattel  mortuanes.  [act  of  .Jann- 
tliem  the  said  eugiises.  boilers,  and  saw-  ary  I:.',  Is7."),]  reiiuirin;;  that  every  such 
nnlls  for  the  price  of  $4. liss,  nearly  all  of  mort};a;;e  shall  set  unt  certain  particidarM 
which  was  secured  by  certain  promissory  as  to  parties,  time,  amount,  etc.,  >\  ith  an 
noti's,  which  severally  c.iniained  tlie  alTnlavit  nttaclied  that  it  is  bona  fide, 
terms  of  the  aurreement  lietwecn  the  ))ar-  and  made  witliout  any  design  to  defraud 
ties.  One  of  the  notes  (the  others  beiiiy;  and  dela.v  creditors;  and  rei|uirinn  the 
in  the  same  form)  was  as  follows,  to-\\  it :  mortKa«e  and  allidavit  to  be  recorded  in 
".Salt  Lake  City,  Octol)er  L',  Issil.  On  or  the  county  where  the  niort>;ai;or  liveH, 
before  the  tirst  day  of  May,  In*<:!.  for  value  and  in  that  where  the  property  is  located: 
received  in  ore  si-Xteen-horse  i)(;rtable  en-  and  it  is  declared  that  no  clialtel  tnort 
Kine,  No.  l,()'J(i,  and  one  portable  saw-iuill,  '  >ra;re  shall  be  valid  (except  as  between  the 
No.  ll'N,  all  complete,  bouf;ht  of  I>.  I'..  Mat-  parties  tlit;reto)  without  compliance  with 
tison,  auent  of  Kussell  &  Co.,  we,  or  either  these  requisites,  unless  the  inortKairee 
of  us,  promise  to  pay  to  the  order  of  I  shall  have  actual  poss^ession  of  the  prop- 
Kussell  &  Co.,  Massillon,  Ohio,  .1f:!iiO,  pay- '  eriy  niortirajjed.  In  the  present  case  no 
al)le  at  Wells,  Faryro  &  Co.'s  lui nU,  Salt  alfidavit  was  attached  to  the  nt)ttH,  dot 
Lake  City,  Utah    Territory,  with    ten    per  j  were  they  recorded. 

cent,  interest  per  annum  from  October  1,  j  Tin- court  found  that  it  was  the  Inten- 
1882,  until  paid,  and  reasonable  ai tor-  tioii  of  I'lielan  it  I'"eri;nson  and  of  Kiissell 
ney's  fees,  or  any  costs  that  may  be  paid  i>c  Co.  tlia t  tiie  titli' to  the  said  proiicrty 
or  incurred  in  any  action  or  [iroceedinj:;  in-  sliould  not  iiass  from  Kussell  &  Co.  until 
Htituted  for  the  collictioii  of  this  note  or  all  the  notes  were  paid.  I'pon  these  facts 
enrorcement  of  this  covenant.  'J"lie  ex-  the  court  found,  as  conclusions  of  law, 
press  condition  of  this  transaction  is  such  that  the  transaction  between  I'helan  & 
that  tlie  title,  ownership,  or  possession  l-Crsruson  and  Kussell  iV  Co.  was  a  condi- 
of  said  enjrine  and  s.-iw-niill  ilocs  not  pass  tioiuil  or  executory  sale,  and  not  an  aliso 
from  the  said  Kussell  &  Co.  until  this  note  lute  sale  with  a  lien  reserved,  and  that 
and  interest  shall  have  been  paid  in  full,  the  title  did  not  pass  to  I'helau  A:  Ferjru- 
and  llio  said  Kussell  &  Co.  or  his  afient  son,  or  from  them  to  tlie  defendant,  and 
has  full  lioiver  to  declare  this  note  due,  t;a  ve  jiidKUient  for  (he  plaintiff.  The  hii- 
and  take  i>ossi'Ssion  of  said  ensine  and  preme  court  of  the  territory  alliniied  this 
saw-mill  when  they  may  tieeui  tlieinsclves  jud;;nient.  [7  I'lic.  Hep.  MI.">  ]  'I'liis  ap- 
insecure  even  liefiire  the  maturity  of  this  peal  was  taken  from  that  judgment, 
note;  and  it  is  further  agreed  bv  the  mak- i      ,,      ,        ,      ,,..,,.  ,i,        ,    v    i-;..,i...ii 

ers  hereof  that  if  said  note  is  not    paid    at  '      ^  "^'''y   V'p"  ■''""""■  'i'"'"  H.i^i  h    '/,' r 
maluritv.  that    the  interest  sliali  'be  two    '""•  -^/-"V'  ';/'!'»'  ^'Ji  ,„L,  t!;',?. 
percent,    per   month  from   tnaturit  v  here-    "PPHlant.     Charles    W  .    lieuuett.   for   ap- 
of  till  paid,    both    before    and    after   jiidu'-    l'^'"''''- 
ir.ent,  if  anv  should  be    rendered.     In    case 

said  saw-mill  and  eiiKiue  shall  be  taken  Mr.  Justice  TiHAnLF.Y, after  statins  the 
back,  Kussell  &  Co.  may  sell  the  same  at  facts  as  above  reported,  delivered  the 
public  or   privjite   sale  without    notice,  or    opinion  of  the  court. 

thev  may,  without  sale,  indorse  the  true  The  lirst  nucstion  to  be  considered  is 
\alueof  the  property  on  this  note,  and  whether  the  transaction  in  iiiic-tion  was 
we  aaree  to  iiav  on  tlie  ni  te  any  lialance  a  conditional  sale  or  a  niortH:a;;e :  that  is, 
due  thereon,  after  such  indorsement,  as  whether  it  was  a  mere  agreement  to  sell 
damages  and  rental  for  said  machinerv.  upon  a  condition  to  be  perforn.ed.  or  an 
As  to  tills  debt  we  waive  the  rifibt  to  ex-  absolute  sale,  with  a  riMervatlon  of  a  lien 
empt,  or  claim  as  exempt,  any  property.  Or  mortfra«e  to  secure  the  pnrehase 
real  or  personal,  we  now  own,  or  mav  nioiie.\  .  If  it  was  the  la  tier,  it  is  ronceded 
iiereafti-r  ac<|uire,  bv  virtue  of  anv  home-  tliat  the  lien  or  iiiorlnaKf  was  void  as 
stead  or  exemption  law,  state  or  federal,  a^'ainst  third  persons,  liecaiise  not  vcrlHed 
now  in  force,  or  that  hereafter  uiav  be  en- 1  by  atlldavit,  and  not  recorded  as  re<iulre<l 


396 


IIAHKNESS  V.  RUSSKLL  &  CO. 


by  the  Inw  of  Tdnho.  But,  so  far  hh 
words  iincl  the  I'xprcsH  intPiit  of  the  i)nr- 
ties  can  go,  it  is  perfectly  evi<lpiit  tliat  it 
was  not  an  alisolnte  sale,  hut  only  an 
aareeuient  t!)  sell  upon  condition  that  th(? 
pnrcMiasers  should  pay  their  notes  at  ma- 
turity. The  laiiKuaf^e  is:  "The  expre.ss 
condition  of  this  transaetif)n  is  snch  that 
the  title  *  «  ♦  does  not  pass  •  »  * 
I'.ntil  this  noteand  Interest  shall  havelieen 
paid  in  full."  If  the  vendees  should  fall  in 
this,  or  if  the  vendors  should  deem  them- 
selves inseeure  hefore  the  maturity  of  the 
notes,  the  latter  were  authorized  to  repos- 
Hes.s  themselves  of  rhe  machinery,  and 
credit  the  then  vahic  of  it,  or  the  proceeds 
of  it  if  they  should  sell  It.  upon  the  unpaid 
notes.  If  this  did  not  pay  the  notes,  the 
balance  was  still  to  be  paid  by  the  makers 
by  way  of  "damages  and  rental  for  said 
machinery."  This  stipulation  was  strict- 
ly in  accordance  with  the  rule  of  daniaRes 
in  such  cases.  I'pon  an  aureement  to  sell, 
if  the  purchaser  fails  to  execute  his  con- 
tract, the  true  measure  of  damaares  for  its 
breach  is  the  difference  between  the  price 
of  the  goods  agreed  on  and  their  value  at 
the  time  of  the  breach  or  trial,  which  may 
fairly  be  stipulated  to  be  the  iiriee  they 
bring  on  a  resale.  It  cannot  he  saitl, 
therefore,  that  the  stipulations  of  the  con- 
tract were  inconsistent  with  or  repugnant 
to  what  the  paities  declared  their  Inten- 
tion to  be,  namely,  to  make  an  executory 
and  conditional  contract  of  sale.  Such 
contracts  ai-e  well  known  in  the  law  and 
often  recognized  ;  and,  when  free  from  any 
fraudulent  intent,  are  not  repugnant  to 
any  principle  of  justice  <jr  equity,  even 
though  possession  of  the  property  he 
given  to  the  proposed  purchaser.  Therule 
is  formulated  in  the  text-books  and  in 
many  adjudged  cases. 

In  Lord  Hlackburn's  Treatise  on  the 
Contract  of  Sale,  published  40  years  ago, 
two  ri'les  are  laid  down  as  established. 
(1)  That  where,  by  the  agreement,  the 
vendor  is  to  do  anything  to  the  goods  be- 
fore delivery, it  is  a  condition  precedent  to 
the  vesting  of  the  property;  (2)  that 
where  anything  remains  to  l)e  done  to  the 
goods  for  ascertaining  the  (irice,  such  as 
weighing,  testing,  etc.,  this  is  a  condition 
precedent  to  the  transfer  of  the  pi'operty. 
I^lackb.  Sales,  l.'rj.  .\nd  it  is  sul)se(iuentiy 
added  that  "the  partle.s  may  indicate  an 
intention,  by  their  agi'eement,  to  make 
any  condition  precedent  to  the  vesting  of 
the  property  ;  and,  if  they  do  so.  their  in- 
tention is  fulHlled."     Blackb.  Sales,  107. 

Mr.  Benjamin, in  his  Treatise  on  Sales  of 
Personal  Property,  adds  to  the  two  for- 
mulated rules  of  Lord  Blackburn  a  third 
rule,  which  is  supported  by  many  authoi-l- 
ties,  to-wit:  (3)  "Where  the  buyer  is  by 
the  contract  bound  to  do  anything  as  a 
condition,  either  precedent  or  concurrent, 
on  which  the  pnssing  of  the  property  de- 
pends, the  property  will  not  i)ass  until  the 
condition  be  fulfilled,  even  iliough  the 
goods  may  have  been  actually  delivered 
into  the  possession  of  thel)uver."  Keiij. 
Scales,  (L'd  Ed.)  2:jfl;  Id.  (3d  Ed.)  §  320. 
The  author  cites  for  this  proposition 
Bishop  V.  Stilllto,  2  Barn.  &  Aid.  32'J,  note 
a;  Brandt  v.  Bowlby,2  L5arn.&  Add.  932; 
Barrow   v.  Coles,  (Lurd   Ellen  borough,)  3 


Camp.  92;  Swain  v.  Shepherd,  (Baron 
Parke,  1  I  .Moody  &  R.  223;  Mires  v.  .Sole- 
bay,  2  Mod.  213. 

In  the  last  case,  decided  in  the  time  of 
Charles  II.,  on<'  Alston  took  sheei)  to  ]m8» 
ture  for  a  certain  time,  with  an  agreement 
that  if,  at  the  end  of  that  time,  he  shinld 
pay  the  owner  a  certain  sum,  he  should 
liave  the  sheep.  Before  the  time  expired 
the  owner  sold  them  to  another  person; 
and  it  was  lield  that  the  sale  was  valiil, 
and  that  the  agreement  to  sell  the  sheep 
to  Alston,  if  he  would  pay  for  tlnni  at  a 
certain  day,  did  not  amount  to  a  sale,  but 
only  to  an  agreement.  The  other  cases 
were  instances  of  sales  (jf  goods  to  l)e  paid 
for  in  cash  or  securities  on  delivery.  It 
was  held  that  the  sales  were  conditional 
only,  and  that  the  vendors  were  entitled 
to  retake  the  goods,  even  after  delivery, 
if  the  condition  was  not  i)erformed;  the 
delivery  being  considered  as  conditional. 
This  often  happens  in  cases  of  sales  by 
auction,  when  certain  terms  of  payment 
are  prescribed,  with  a  condition  that,  if 
they  are  not  complied  with,  the  goods 
may  be  resold  for  account  of  the  buyer, 
who  is  to  account  for  any  deficiency  be- 
tween the  second  sale  and  the  first.  Such 
was  the  case  of  Ijamond  v.  Duvall,  9  Q.  B. 
1030;  and  many  more  cases  could  be  cited. 

In  Ex  parte  ('rawcour,  L.  H.  9  Ch.  Div. 
419, certain  furniture  dealers  let  Robertson 
have  a  lot  of  furniture  upon  his  paying 
£10,  in  cash  and  signing  an  agreement  to 
pay  £.")  per  month  (for  which  notes  were 
given)  until  the  whole  itrice  of  the  furni- 
ture should  iiepald;  and  when  all  the  in- 
stallments were  paid,  and  not  liefore,  the 
furniture  was  to  be  the  property  of  Rob- 
ertson; but,  if  he  failed  to  pay  any  of  the 
installments,  the  owners  were  authorized 
to  take  possession  of  the  property,  and  all 
prior  payments  actually  made  were  to  be 
forfeited.  The  court  of  appeals  held  that 
the  property  did  not  pass  by  this  agree- 
ment, and  could  not  he  taken  as  Robert- 
son's property  by  his  trustee  under  a  liq- 
uidation i)roceeillng.  The  same  conclu- 
sion was  reached  In  the  subsequent  cHse 
of  Crawcour  v.  Salter,  L.  R.  IS  Ch.  Div.  :i0. 

In  these  cases,  it  is  true,  support  of  the 
transaction  was  sought  from  a  custom 
which  prevails  In  the  i''f>tps  where  the 
transactions  took  place,  of  hotel. keepers 
holiling  their  furniture  on  hire.  But  they 
show  tliat  the  intent  of  the  parties  will  be 
recogtnzed  and  sanctioned  wh.ere  it  is  not 
contrary  to  the  policy  of  the  law.  Thi.9 
policy,  in  England,  is  declared  by  statute. 
It  has  long  been  a  provision  of  the  Eng- 
lish 'jankrui)t  laws,  beginning  with  21 
.fames  I.  c.  19,  that  if  any  person  l)ecom- 
ing  bankrupt  has  in  his  i)ossession,  order, 
or  disposition,  by  con.sent  of  (he  owner, 
any  goods  oi- chattels  of  which  he  is  the 
reputed  owner,  or  takes  upon  himself  the 
sale,  alteration,  <»r  disposition  thereof  as 
owner,  snch  goods  are  to  be  sold  for  the 
benefit  of  his  creditors.  This  law  has  had 
the  effect  of  preventing  or  defeating  condi- 
tional saies  accompanied  by  voluntary 
delivery  of  possession,  except  in  cases  like 
those  l)efore  referred  to;  so  that  very  few 
decisions  are  to  be  foimd  m  the  English 
books  directly  in  |)oint  on  tne  question 
nnder  consideration.     The  following  case 


HARKXESS  0.  RUSSELL  &  CO. 


897 


preBL'titH  a  fair  illustrati<jn  of  the  Enttlish  ' 
law  iVH  bnspil  upon  the  Htjitiitcw  of  bank- 
ruptcy. In  Horn  v.  liaki/r, '.I  HiiHt,  111."),  thi- 
owner  of  a  term  in  a  (linti!lery,  and  of  the 
apparatUH  and  uteuHilH  einphiyed  therein, 
decniwed  the  same  toJ.&.S.  in  connidera- 
tion  of  an  annuity  to  l)e  paid  to  tlie  owner 
and  liis  wife  during  their  several  liveH.and 
upon  tluir  (leiith  the  lesweeH  to  have  the 
liberty  of  purclianiu}^  tlie  residue  of  the 
term,  and  tlic  api)aratus  anil  utensils, 
with  a  proviso  for  re-entry  if  the  annuity 
should  at  any  lime  be  two  niontlis  in  ar- 
rear.  The  annuity  havinj?  beeom:'  in 
arrenr  for  that  |)eriod,  instead  of  makinfr 
entry  for  condition  broken,  tlie  wife  and 
administrator  of  the  owner  broujiht  suit 
to  recos'er  the  arrears,  which  was  stopped 
by  the  bankruptcy  of  .1 .  &  S.  The  ([ues- 
tiiin  then  arose  %vhether  the  urensils 
passed  t<»  the  assignees  of  .J.  &  .S.  under 
the  bankrupt  act,  as  beinsr  in  their  posses- 
sion, order,  and  disposition  as  reputed 
owners;  and  tlie  court  held  that  they 
did;  but  that,  if  there  had  been  a  usaxe 
in  the  trade  of  letting  utensils  with  a  dis- 
tillery, the  case  would  have  adniitteil  a 
diff'.'ient  considc'ration,  since  such  a  cus- 
tom niight  liaverebutU'd  the  presumption 
of  ownership  arising  from  the  possession 
and  apjiarent  order  and  dispohition  of  the 
goods.  Thiscase  was  fidlowed  in  Holroyd 
V.  (iwjniK',  L' Taunt.  170.  [ 

This  prcsuuiiition  of  property  in  a  bank- 
rupt arising  from  his  possession  and  re- 
(luted  ownership  became  so  deeply  imlied- 
(le<l  in  the  English  law  that  in  process  of 
time  many  persons  in  the  profession,  not 
adverting  to  its  origin  in  the  statute  of 
Imnkruptey,  were  led  to  regard  itnsniloc- 
trine  of  the  common  law;  and  hence  in 
some  states  In  this  country,  where  no  such 
statute  exists,  the  principles  of  the  statute 
have  bi-eii  followed,  and  conditional  sales 
of  the  kind  now  under  consideration  iiave 
been  condemned  either  as  being  fraudulent 
and  void  as  against  I'leditors,  or  as 
aniountliii:,  in  effect,  to  alisulute  sales 
with  a  reserved  lii-n  or  mortgage  to  secure 
the  paywicnt  of  tlie|iurch.Tse  money.  This 
view  is  based  on  the  notion  that  such  sales 
are  not  allowed  by  law,  and  that  the  in- 
tent of  the  [larties,  however  honestly 
formed,  cannot  legally  be  carried  out. 
The  insuMiciencv  of  this  argument  is  dem- 
onstrated by  the  fact  that  conditiomil 
sales  are  adnimsible  in  several  acknowl- 
edged cases,  .Mild  therefore  there  cannot  be 
any  rule  of  law  against  them  as  such. 
They  may  sometimes  be  used  as  a  cover 
for  fraud  ;  and,  when  this  is  clinrt'cd.  all 
the  circumstances  of  the  case,  this  includ- 
ed, will  be  open  for  the  consideration  of  a 
jury.  Where  no  fraud  is  iiitendeil,  but 
the  honest  purpose  of  the  parties  is  that 
the  vendee  shall  not  have  t  he  o  wnershi|) 
of  the  goods  until  he  has  |>nid  for  them, 
there  is  no  general  principle  of  law  to 
prevent  their  purfiDse  from    h.-iving    effect. 

In  this  country,  in  states  where  no  such 
statute  as  the  English  act  referred  to  is  in 
force,  many  decisions  have  lieen  rendere<l 
BUHtalnIng  conditional  sales  accompanied 
by  delivery  of  possession,  lioth  as  between 
the  parties  themselves  and  us  to  third 
persons. 

In  Hussey  v.  Thornton,  4  Mass.  404,  (de- 1 


cided  In  180S,)  where  Rctods  were  delivered 
on  board  of  a  vessel  for  the  venrlee  upon 
an  agreement  for  a  sole,  subject  to  the 
condition  that  the  goods  should  remain 
the  property  of  the  vendors  until  they  re- 
ceived security  for  |iayment,  it  was  "held 
(Chief  .Justice  I'arsoiis  delivering  the 
opinion)  that  the  property  dill  not  pass, 
and  that  the  goods  could  not  be  attached 
by  the  creditors  of  the  vendee. 

This  case  wasfolloweil  in  l^-'l'  by  tliat  of 
Marston  v.  lialdwin,  17  .Mass.  Ciiti,  which 
was  replevin  against  a  sheriff  for  takini; 
goods  which  the  plaintiff  had  agreed  to 
sell  to  one  Holt,  the  defendant  in  the  at- 
tachnient;  but  by  the  agreement  thefirop- 
crty  was  not  to  vest  in  Holt  until  he 
shouMpay  ?100,  (part  of  the  price,)  which 
condition  was  not  performed,  though  the 
goods  were  delivered.  Holt  had  iiaid  $75, 
which  the  plaintiff  did  not  tender  back. 
The  court  held  that  it  was  sullicient  for 
the  plaintiff  to  be  ready  to  refiuy  the 
mone.v  when  he  should  te  rei)uesteil,  nnJ 
a  verdict  for  the  plaintiff  was  sustained. 

In  Barrett  v.  Fritchard,  2  Pick.  512,  the 
court  said:  "It  is  impossible  to  raise  a 
doubt  as  to  the  intention  of  the  parties  in 
this  case,  for  it  is  expressly  stifiulated 
that  "the  wool,  before  manufactured, 
after  being  manufactured,  or  In  any  stage 
of  manufacturing,  shall  ne  the  propert.v 
of  the  plaintiff  until  the  price  be  paid.' 
It  is  difliciilt  to  imagine  any  good  reason 
why  this  agreement  should  not  bind  the 
Iiarties.  •  »  »  The  casi!  from  Taunton 
(  Holroyd  v.  G  wynne, )  was  a  case  of  a  con- 
ditional sale  ;  but  the  conditiuu  was  void 
as  against  the  polic.v  of  the  statute  "Jl  .lac. 
1,  c.  1!),  §  11.  It  would  not  have  changed 
the  decision  in  that  c!ise  if  there  had  bem 
no  sale;  for,  by  that  statute,  if  the  true 
owner  of  goods  .nnil  chultels  suffers  an- 
other to  exercise  such  control  and  man- 
agement over  them  as  to  give  him  the  ap- 
(learance  of  being  the  real  owner,  and  he 
becomes  bankrupt,  the  goods  and  chattels 
shall  be  treated  as  his  profierty,  and  shall 
be  assigned  liy  the  comtiiissloners  tor  the 
beneht  of  his  creditors.  The  case  of  Horn 
V.  Haker,  !)  Kast,  LM").  also  turned  on  the 
same  [loiiit,  and  nothing  in  either  of  these 
cases  has  any  bearing  on  the  present  ques- 
tion." 

In  t'ogeill  V.  Hartford  &  X.  H.  U.  O).,  3 
(Jray,  .'il.'i.  the  rights  of  a  bona  tide  pur- 
chaser from  one  in  possession  uniler  a  con- 
ditional sale  of  goods  were  H|iecillcally  dis- 
cussed, and  the  court  held,  in  an  alile  opin- 
ion delivered  by  .Mr.  .lustice  Higelow.  that 
a  sale  and  delivery  of  goods  on  rondllion 
that  the  title  shall  not  vest  in  the  vendee 
until  payment  of  the  price  passes  no  title 
until  the  conilitiiin  is  performed,  and  the 
vendor,  it  guil'y  of  no  ladies,  may  re- 
rliilni  the  property,  even  from  one  who 
has  purchased  from  his  vemb-e  in  good 
faith,  and  without  notice.  The  learned 
justice  commenced  his  opini  in  In  the  fol- 
lowing terms:  "It  has  long  been  the  set- 
tled rule  of  law  in  this  commo:: wealth 
that  a  sale  and  delivery  of  goods  on  con- 
dition that  the  properly  is  not  to  vest  un- 
til the  purchase  money  is  paid  orsei-ured, 
does  not  pass  the  title  to  the  vendee,  and 
that  the  vendor,  in  case  the  condition  Is 
not  fullilled,  has  a  rit'lit  to    repossess  him- 


398 


HAI?KNESS  B.  RUSSELL  &  CO. 


self  of  the  goods,  both  asninHt  the  vcikIpo  '  suit  mid  of  the  injunction,  tlio  remedy 
and  UKHinst  his  creditors  clniniin;^  to  !iohl 
tlicni  under  nttnclinients. "  lie  thi'n  ad- 
dresses liiinsi'lf  to  a  consideration  of  the 
rights  of  a  l)ona  fide  piircliascr  from  the 
vendee,  imrcliasinii-  witliout  notice  of  che 
condition  on  wliicli  tlie  latter  liidds  tlie 
goods  in  liis  possession;  and  lie  concludes 
that  thc.v  are  no  greater  than  those  (jf  a 
creditor.     He   says:    "All    the   cases    turn 


J 


inld  ha  ve  been  gone. 

In  Strong  v.  Taylor.  2  Hill,  S2(i,  Nelson, 
C.  .1.,  pioiKMincing  the  opinion,  it  was  held 
to  he  a  conditional  sale  where  the  agrer- 
ment  was  to  sell  a  canal-hoat  for  a  cer- 
tain sum,  to  be  paid  in  freighting  Hour 
and  wheat,  as  directed  by  the  vendor,  he 
to  liave  h;ilf  the  freight  until  paid  in  full, 
with  interest.     Before   the    money  was  all 


Oil  the  principle  that  the  compliance  with  paid  the  boat  was  seized  under  an  execu- 
the  conditiens  of  sale  and  delivery  is,  by  tion  against  the  vendee ;  and,  in  a  suit  by 
the  terms  of  tlie  contract. precedent  to  the  the  vendor  against  the  sheriff,  a  verdict 
transfer  of  the  jiroiierty  from  the  vendor  ,  was  foanil  for  the  plaintiff,  under  the  in- 
to the  vendee.  The  vendee  in  such  cases  struction  of  the  court,  and  was  sustained 
accjuires  no  proiierty  in    the  goods.     Ho  is  j  in  banc  ujion  the  authority  ot    the  Massa- 

ehusetts  case  ot   Barrett   v.    Pritchard,   2 
Pick.  512. 

In  Herring  v.  Hoppock,  15  N.  Y.  JO!),  the 
same  doctrine  was  f(jllowed.  In  tliat  case 
there  was  an  agreement  in  writing  for 
the  sale  of  an  Iron  safe,  which  was  deliv- 
ered to  the  vendee,  and  a  note  at  si.\ 
months  given  therefor;  but  it  was  ex- 
pressly understoo.l  that  no  title  was  to 
pass  until  the  note  was  paid;  and  if  not 
paid.  Herring,  the  vendor,  was  authorized 
higher   to   retake  the  safe,  and  collect  all  reason- 


only  a  bailee  for  a  specific  purpose.  The 
delivery  which  in  ordinary  cases  passes 
the  tide  to  the  vendee  must  take  effect 
according  to  the  agreement  of  tlie  parties, 
and  can  operate  to  vest  the  property  <inly 
when  the  contingency  eouteni plated  by 
the  contract  arises.  The  vendee,  there- 
fore, in  such  ca.ses,  having  no  title  to  the 
property,  can  pass  none  to  others.  He 
lias  only  a  bare  right  of  possession,  and 
those  who  claim  under  him, either  as  cied 


itors  or  purchasei-s,  can  aciiuii'' 

or  better   title.     Such 

suit  of  cairyin 

of  the  parties  t 

livery.     .\ny  other  rule  would    bo 

lent  to   the   denial  of   tlie  validity  of   such 

contracts.     But    they  cert;!inly  violate  no 

rule   of   law,    nor    are   they   contrary    to 

sound  policy." 

This  case  was  followed  in  Sargent  v. 
Metcalf,  5  (iray,  30G;  Deshon  v.  Bigelow, 
X  Gray,  159;  Whitney  v.  Eaton,  15  (iray, 
225;  Hirschorn  v.  Canney,  9S  Mass.  149; 
and  Chase  v.  Ingalls,  122  Mass.  3fSl:  and  is 


is   the  necessary  re-    able  charges  for  its  use.     The  sheriff  levied 
effect  the   intention    on  the   safe  as  the  property  of  the  vendee, 
nditional  sale  and  de-    with    notice  of   the  plaintiff's   claim.     The 
iniva-   court   of   appeals   held    that    tlie  title   did 
not  pass  out  of    Herring.     Paige,  ,1.,  said  : 
"  Whenever  there  is  a  condition   iirececlent 
attached    to   a   contract  of  sale  which    is 
not  waived  liy  an  absolute   and    iincondi- 
tiona   delivery ,  no  title  passes   to  the  ven- 
dee until  he  performs    the  coa>lilion  or  the 
seller  waives  it.  "     C<jnistock,  .1.,  said  that, 
if  the  question  were  new, it  might  be  more 
in    accordance  with    the   analogies  of  the 


Believed   to    ex[)resB    the    settled    law    of '  law  to  regard  the  writing  given  on  thesale 


Massachusetts. 

'J'he  same  doctrine  prevails  in  Connecti- 
cut, and  was  sustained  in  an  able  and 
learned  opinion  of  <'hief  Justice  Williama, 
in  the  case  of  Forbes  v.  Marsh,  15  Conn. 
:W4,  (decided  in  1S43,)  in  which  the  [irinci- 
pal  authorities  are  reviewed.  The  deci- 
sion in  this  case  was  followed    in    the  sub 


asa  mere  security  for  tliedebtin  tlien;iture 
of  a  personal  mortgage;  but  lieconsidered 
I  the  law  as  having  been  settled  by  the  pre- 
vious cases,  ana  the  court  unanimously 
concurred  in  the  decision. 

In  the  cases  ot  Smith  v.  Lynes.S  N.  Y.  41, 
and  Wait  v.  Green, 35  Rarl).5s5,on  appeal, 
3fi  N.  Y.  .556,  it  was  hold  that   a    bona    fide 


seijuent  case  of  Hart  V.  Carpenter,  24  Conn,    purchaser,  without   notice   from  a  vendee 

who  is  in  possession    under   a  conilitional 
sale,  will  be  protected  as  against  the  orig- 
in   New  York    the   law    is    the  same,  at  1  inal  v?iidor.     These  cases  were   reviewed. 


427,  where    the   question    arose  upon    the 
claim  of  a  bona  fide  ourchaser. 


least   so   far  as  relates    to  the  vendee  in  n 
conditional    sale    and    to    his    creditoi's; 


and,  we  think,  substantially  overruled,  in 
the  subsequent  case  of  Ballard  v.  P.iirgett. 


though  there  has   been    some   diversity  of   40   N.  Y.  314,  in  which    separate  elnb'irate 


opinion  in  itsapplicatioii  to  bona  fide  pur- 
chasers froru  such  vendee. 


opinions  were  delivered  by  .ludges  (jrover 
and  Lott.    This  decision  was  concurred  in 


As  early  as  1S22,  in  the  case  of  Ilaggerty  by  Chief  Judge  Hunt,  and  Judges  VVood- 
V.  Palmer,  ()  JoliuH.  Ch.  437,  where  an  auc-  ruff.  Mason,  and  Daniels;  Judges  James 
tioneer  had  delivered  to  the  purchaser  and  Murray  dissenting.  In  that  case  Bal- 
goods  sold  at  auction,  it  being  one  of  the  lard  agreed  to  sell  to  one  France  a  yoke  of 
conditions  of  sale  that  imlorsed  notes  oxen  for  a  price  agreed  cm,  lint  the  con- 
should   be   given    in    payment,    which    the    tract    had    the   condition  "  that    the   oxen 

were  to  remain  the  property  of  Ballard 
until  they  should  be  pai(!  for."  The  oxen 
were  delivered  to  France,  and  he  subse- 
(piently  sold  them  to  the  defen<lant  Bur- 
gett,  who  purchased  and  received  them 
without  notice  that  the  plaintiff  had  any 
claim  to  tliera.  The  court  sustained  Bal- 
lard's  claim;    and     subsequent    cases    in 


purchaser  failed  to  give.  Chancellor  Kent 
held  that  it  was  a  conditional  sale  and 
delivery,  and  gave  no  title  which  the  ven- 
dee could  transfer  to  an  assignee  for  the 
benefit  of  creditors;  and  he  said  that  the 
cases  under  the  English  bankrupt  act  did 
not  apply  here.  The  chancellor  remarked, 
however,  thafif  tliegoods  had  beenfairly 

sold  by  P.,  [the  conditional  vendee.]  or  if  New  Y'ork  are  in  harmony  with  this  deci- 
the  proceeds  had  been  actually  appropri-  sion.  See  Cole  v.  Mann,  62  N.Y.  1 ;  Beau  v. 
ated  by  the  assignees  before  notice  of  this   Edge,  84  N.  Y.  510. 


IIARKNESS  V.  RUSSELL  &  CO. 


3<» 


We  (Jo  not  perceive  that  the  case  of 
DovvH  V.  Kiildcr,  S4  N.  Y.  iL'l,  is  adverse  to 
tlie  ruling?  in  I'lilliird  v.  HiirKctt.  There, 
iiltlioiiKJi  file  plaintiffs  stipulated  that  the 
title  to  the  corn  should  not  pass  until 
payment  of  tlii;  price,  ( which  was  to  l)e 
lasli,  the  same  day,)  yet  they  indorsed 
and  delivered  to  the  piirchaspr  the  evi- 
dence of  title,  namely,  the  weigher's  re- 
turn, to  enable  liim  to  take  out  the  hill  of 
lading  in  his  own  name,  and  use  it  in 
raisiuK  funds  to  pay  the  plaintiff.  The 
purchaser  misapiiropriated  the  funds,  anil 
ilid  not  pay  for  the  corn.  Here  the  intent 
of  hoth  parties  was  that  the  |)urchaser 
niJKht  dispose  of  the  corn,  and  he  was 
merely  the  trustee  of  the  plaintiff,  in  veste<l 
hy  him  with  tlie  le^al  title.  ( )f  course,  the 
ianoceut  party  who  purchased  the  corn 
from  the  lii'st  purchaser  was  not  liound 
l)V  the  e(iuities  hotween  him  and  the  plain- 
tiff. 

The  later  case  of  Parker  v.  Baxter,  S(!  N. 
Y.  ."iS(i,  was  precisely  similar  to  Dowh  v. 
Kidder;  and  the  same  iirinciple  was  in- 
volved in  Karwell  V.  lmporters'&  Traders' 
Hank,  Dlt  N.  Y. -Is:!,  where  the  ()laintiff  de- 
livered his  own  note  to  a  hroker  to  }ict  it 
discounted,  and  the  latter  pledged  it  as 
collateral  for  a  loan  ma  le  to  himself.  The 
U'Kal  title  passed:  and  although,  as  be- 
tween the  plaintiff  and  the  hi'oker,  the 
former  was  the  owner  of  the  note  an<l  its 
proceeils,  yet  that  was  an  eiiuity  which 
was   not  hindinfj;  on    the  innocent    holder. 

The  liecisions  in  Maine,  New  IIam|)sliire, 
and  Vermont  are  understood  to  l>e  suh- 
stantially  to  the  same  effect  as  those  of 
Massachusetts  and  .Mew  York;  thouj;h  hy 
recent  statutes  in  Maiire  and  Vermont, 
as  also  in  Iowa,  where  the  same  ruling 
prevailed,  it  is  declared  in  effect  that  no 
acreements  that  personal  proi  erty,  l)ar- 
Uained  and  delivered  to  another,  shall 
remain  the  property  of  the  vendor,  shall 
he  valid  against  third  persons  without 
notice,  (jeorue  v.  Stulihs,  L'(>  Me.  IM:}; 
Sawyer  v.  Kislier,  ;V2  .Me.  2S;  Brown  v. 
Haynes,  .")L' .Me.  r>7S;  Boy n ton  v.  Lihhy,  (>l' 
Me.  1.'.'.:!;  KoHcrs  v.  Whitehouse.  71  Me.L'L'L': 
Sartrent  v.  (Jile,  S  X.  IL  :!!'.->;  McFarland  v. 
Farmer,  41'  N.  II.  :!S('>;  Kin«  v.  Hates.  T)? 
N.  H.  44r,,  UefJlin  v.  Hell.  .!()  Vt.  1:!4;  Arm- 
InKtoii  V.  Houston,  ;!s  Vt.  4lJ<;  Kales  v. 
Uolierts,  :!S  Vt.  .'^id:!;  Duncans  v.  Stone,  4.") 
Vt.  12!;  Moseley  v.  Shattuck.4:5  lowa,r.4n; 
Thorpe  v.  Fowler,  .">7  Jowa,  j41,ll  N.  W . 
Hep.  :!. 

The  same  view  of  the  law  has  been 
taken  in  several  other  states.  In  New.Ier- 
sey,  in  the  case  of  ('(de  v.  Berry,  4L'  N.  ,J. 
Law,  :tOS,  it  was  hehl  that  a  contract  for 
the  sale  of  a  sewinif-mnchino  to  he  deliv- 
ered and  paid  for  Dy  instadments,  and  to 
remain  the  i)ropert.v  of  the  vendor  until 
paid  for,  was  a  conilitional  sale,  and  f;av 
the  vendee  no  tilleuntil  tlie  condition  was 
performe<i ;  aiul  the  cases  are  ver.v  fully 
discussed  and  distinfj:uislied. 

In  I'ennsylv.inia  tlie  law  is  understood 
to  lie  somewhat  dlfferiMit.  It  is  thus  sum- 
marized liy. Indue  Depue,  in  the  opiniun 
deliven-d  in  fole  v.  Berry.  4l'  N.J.  Law. 
.■!14.  where  ho  ways:  "In  Pennsylvania  a 
distinction  is  taken  between  delivery  un- 
der a  liailnient.  with  an  ofition  in  the 
liailee  to  purchane  at  a   named   price,  and 


a  clelivery  under  a  contract  of  sale  con- 
taining a  reservation  of  title  in  the  ven- 
dor until  the  contract  price  be  paifl;  It 
beiuK  held  that  in  the  former  Instance 
property  <loes  not  jiass  as  in  favor  of  cred- 
itors and  purchasers  of  the  bailei-.  but  that 
In  the  latter  instance  delivery  to  the  ven- 
dee subjects  the  property  to  execution  at 
the  suit  of  his  creditors,  and  makes  It 
transferrable  to  bona  tide  purchasers, 
f'hambeilain  v.  Smith.  44  Pa.  St.  4:!!; 
Hose  v.  Story,  1  Pa.  St.  I'.IO;  .Martin  v. 
Mathiot.USerK.  &  R.214:  llaak  v.  I.inder- 
tn.ui,  C-l  Pa.  St.  4'.t!). "  Hut,  as  the  l.-arned 
judge  adds:  "This  distinction  Is  discred- 
ited by  the  great  weiglit  of  anthcirity, 
which  puts  [lossession  under  a  conditional 
contract  of  sale  and  possession  under  a 
bailment  on  the  same  footing,-  liable  to 
lie  assailed  by  creditorsanil  purchasers  for 
actual  fraud,  but  not  frauilulent  perse." 

In  this  connection,  see  the  case  of  Cop 
land  V.  Bos(|uet.  4  Wash.  ."iS.s,  where  Mr. 
.lustice  Washington  and  .fudge  peters 
(the  former  delivei'ing  the  opinion  of  the 
c<iurt)  sustained  a  conditional  sale  and 
delivery  against  a  purchaser  from  theven- 
dee.  who  idairiied  to  be  a  bona  tide  pur- 
chaser without  notice. 

In  Ohio  the  validity  of  conditional  sales 
accompanied  by  delivery  of  possossinn  is 
fully  sustjiined.  The  latest  reported  case 
brought  to  oiir  attention  is  that  of  fall  v. 
Seymour.  40  Ohio  St.  (170.  which  arose  up- 
on a  written  cuntract  contained  in  sev- 
eral promissory  notes  given  f<ir  install- 
ments of  the  purchase  moie'.v  of  a  ma- 
chine, and  resembling  very  niMcdi  the  con- 
tract in  tlie  case  now  under  coiiKideratlon. 
Following  the  note,  and  as  a  part  of  the 
same  document,  is  this  condition:  "The 
express  conditions  of  the  sale  and  pur- 
chase of  the  separator  and  horse-power 
for  which  this  note  is  given,  is  such  that 
the  title,  ownershij),  or  piisscHslon  does 
not  pass  from  the  said  Seymour,  Sabin  * 
Co.  until  this  note,  with  interest,  is  paid 
In  full.  The  said  Seymour.  .Saliiii  &  Co. 
have  full  power  to  declare  this  note  due. 
and  take  possession  of  salil  separator  and 
liorse-power.  jit  any  lime  they  may  deem 
this  note  insecure,  even  before  the  ma- 
turity of  tlie  note,  and  to  sell  the  said  ma- 
chine at  Dublic  or  private  sale,  the  pro- 
ceeds to  be  applied  upon  the  unpaid  bal- 
ance of  the  purchase  price."  The  machine 
was  seized  under  an  attachment  issued 
against  the  vendei-.  and  the  action  was 
lirought  by  the  vendor  against  the  con- 
stable who"  served  the  attachment.  The 
case  was  fully  argneil,  and  the  authori- 
ties pro  ami  con  duly  considered  by  the 
court,  which  sustained  the  condition  ex- 
pressed in  the  contract,  and  aHiriiied  the 
judgment  for  the  plaintiff.  Siv,  also, 
Sanders  v.  Kcber,  -.N  Ohio  St.  ("la. 

Thesaniclaw  prevails  in  Indiana.  Shire- 
man  V.  Jackson.  14  Ind.  4."i'.>;  Piinbar  v. 
Itawles,  L'S  Ind.  L'L'.'i :  Hradshaw  v.  Warner. 
.'i4  Ind.  .W;  Ilodson  v,  Warner.  iW  Ind.  J14: 
McGirr  v.  Sell,  Id.  L'4'.i.  The  same  in  .Michi- 
gan. Whitney  v.  MrConnell,  L".»  .Mich.  IL'; 
Smith  V.  Lozo.  4J  .Mich.  C.  ^  N.  W.  Rep. 
l'L'7;  Maniuette  .Miiaufg  Co.  v.  Jeffery.  40 
Mien.  Js:!.  I.!  N.  W.  Rep.  .V.tJ.  The  same  in 
.Missouri.  Ridgeway  v.  Kennedy.  .V.'  .Mo. 
:!4;  Wangler  v.  Franklin,  70  Mo.  G.VJ;  Sum- 


400 


HARKNESS  v.  RUSSELI.  &  CO. 


ner  v.  Cottey,  71  Mo.  121.  The  same  iii  Al- 
nbnnia.  FairbaukH  v.  Kiireka,()7  Ala.  10!); 
Sumner  v.  Woods.  Id.  139.  Tlio  Kair.e  in 
several  other  states.  For  a  very  elabo- 
rate colleetion  of  cases  on  the  subject,  see 
Mr.  I5ennett's  note  to  Benj.  .Sales,  (4th 
Ed.)  §  320,  pp.32'J-33(i;  and  Mr.  Freeman's 
note  to  Kanaka  v.  Taylor,  70  Amer.  Dec. 
62,  7  Ohio  St.  134.  It  is  unnecessary  to 
quote  further  from  the  decisions.  The 
quotations  already  made  show  the 
grounds   and  reasons    of  the  rule. 

The  law  has  been  held  differently  in  Illi- 
nois, and  verj'  nearly  in  conformity  with 
the  English  decisions  under  the  operation 
of  the  bankrupt  law.  The  doctrine  of  the 
supreme  court  of  that  state  is  tliat  if  a 
person  asirees  to  sell  to  another  a  chattel 
on  condition  that  the  price  shall  be  paid 
within  a  certain  time,  retaining  the  title 
in  himself  in  the  mean  time,  and  delivers 
the  chattel  to  tlie  vendee  so  as  to  clothe 
him  with  the  apparent  ownershii),  a  bona 
fide  purchaser,  or  an  execution  creditor 
of  the  latter,  is  entitled  to  protection  as 
against  the  claim  of  the  original  vendor. 
Brundage  V.  Camp,  21  111.330;  McCormick 
V.  Hadden,  37  li:.  370;Murch  v.  Wrisht, 
46  111.488;  Michigan  Cent.  R.  Co.  v.  Phil- 
lips, 60  111.  190;  Lucas  V.  Campbell,  88  111. 
447;  Van  Duzor  v.  Allen,  90  111.  49il.  Per- 
haps the  statute  of  Illinois  on  the  subject 
of  chattel  mortgages  has  influenced  some 
of  these  decisions.  This  statute  declares 
that  "no  mortgage,  trust  deed,  or  other 
conveyance  of  personal  property  having 
the  effect  of  a  mortgage  or  lien  upou  such 
property,  is  valid  as  against  the  rights 
and  interests  of  any  third  person,  unless 
the  possession  thereof  be  delivered  to  and 
remain  with  the  grantee,  or  the  instru- 
ment provide  that  the  possession  of  the 
property  may  remain  with  the  grantor, 
and  the  instrument  be  acknowledged  and 
recorded."  It  has  been  supjjosed  that 
this  statuteindicatesa  ruleof  public  policy 
condenming  secret  liens  and  reservations 
of  title  on  the  part  of  vendors,  and  mak- 
ing void  all  agreements  for  such  liens  or 
reservations  unless  registered  in  the  man- 
ner re(juired  forchattel  mortgages.  At  all 
events,  the  doctrine  above  referred  to  has 
becone  a  rule  of  property  in  Illinois,  and 
we  have  felt  bound  to  observe  it   as   such. 

In  the  case  of  Her'ey  v.  Khode  Island 
Locomotive  Works,  93  U.  S.  064,  where  a 
Rhode  Island  company  leased  to  certain 
Illinois  railroad  contractors  a  locomotive 
engine  and  tender  at  a  certain  rent,  i)aya- 
ble  at  stated  times  during  the  ensuing 
year,  with  an  agreement  that,  if  the  rent 
was  duly  paid,  the  engine  and  tender 
should  become  the  property  of  the  lessees, 
and  possession  was  delivered  to  them, 
tliis  court,  being  satisfied  that  the  trans- 
action was  a  conditional  sale,  and  that, 
by  the  law  of  Illinois,  the  reservation  of 
title  by  the  lessors  was  void  as  against 
third  persons  unless  the  agreement  was 
recorde<l,  (which  it  wasnotin  proper  time,) 
decided  that  a  levy  and  sale  of  the  prop- 
erty in  Illinois,  under  a  judgment  against 
the  lessees,  were  valid,  and  that  the  loco- 
motive works  could  not  reclaim  it.  Mr. 
Justice  Davis,  delivering  the  opinion  of 
the  court,  said:  "It  was  decided  by  tliis 
<-ourt   in    Ureen    v.    Van   Buskirk,   5  Wall. 


307,  and  7  Wall.  139,  that  the  liability  of 
property  to  be  sold  under  legal  process 
issuing  from  the  courts  of  the  state  where 
it  is  situated,  must  be  determined  by  tlie 
law  there,  rather  than  that  of  the  jurisdic- 
tion where  the  owner  lives.  These  deci- 
sions rest  on  the  ground  tiiat  every  state 
has  the  right  to  regulate  tlie  transfer  of 
property  within  its  limits,  and  that  who- 
ever sends  property  to  it  impliedly  sub- 
mits to  the  regulations  concerning  its 
transfer  in  force  there,  although  a  differ- 
ent rule  of  transfer  prevails  in  the  jurisdic- 
tion where  he  resides.  *  *  *  The  policy 
of  the  law  in  Illinois  will  not  permit  the 
owner  of  personal  property  to  sell  it, 
eitherabsolutely  or  conditionally,  and  still 
continue  in  possession  of  it.  Possession  is 
one  of  the  strongest  evidences  of  title  to 
this  class  of  property,  and  cannot  be 
rijjhtfully  separated  from  tlie  title,  except 
in  the  manner  pointed  out  by  the  statute. 
The  courts  of  Illinois  say  that  to  suffer, 
without  notice  to  the  world,  the  real  own- 
ership to  be  in  one  person,  and  the  ostensi- 
ble ownership  in  another,  gives  a  false 
credit  to  the  latter,  and  in  tliis  way  works 
an  injury  to  third  persons.  Accordingly, 
the  actual  owner  of  personal  property 
creating  an  interest  in  another  to  whom 
it  is  delivered,  if  desirous  of  preserving;  a 
lieu  on  it,  must  comply  vsith  the  provi- 
sions of  the  chattel  mortgage  act.  Rev. 
St.  111.  1874,711,712."  The  Illinois  cases 
are  then  referred  to  by  the  learned  justice 
to  show  the  precise  condition  of  the  law 
of  that  state  on  the  subject  under  consid- 
era  lion. 

Tlie  case  of  Hervey  v.  Rhode  Island  Lo- 
comotive Works-  is  relied  on  by  the  ap- 
pellants in  the  present  case  as  a  decision 
in  their  favor;  tint  this  is  not  a  correct 
conclusion,  for  it  is  apparent  that  the  only 
points  decided  in  that  case  were — First, 
that  it  was  to  be  governed  by  the  law  of 
Illinois,  the  place  where  the  property  was 
situated;  secondly,  that  by  the  law  of  Illi- 
nois theagreement  for  continuing  tlie  title 
of  the  property  in  the  vendijrs  after  its 
delivery  to  the  vendees,  whereby  the  latter 
became  the  ostensible  owners,  was  void 
as  against  third  persons.  This  is  all  that 
was  decided,  and  it  does  not  aid  the  ap- 
pellants, unless  they  can  show  that  the 
law  as  held  in  Illinois,  contrary  to  the 
f^reat  weight  of  authority  in  Fn^iland  and 
this  country,  is  that  which  should  govern 
the  present  case.  .4nd  this  we  think  they 
cannot  do.  We  do  not  mean  to  say  tliat 
the  Illinois  doctrine  is  not  supported  by 
some  decisions  in  other  states.  There  are 
sucli  decisions;  but  they  are  few  in  num- 
ber compared  with  those  in  which  it  is 
held  that  conditional  sales  are  valid  and 
lawful  as  well  against  third  persons  as 
against  the  parties  to  the  ccmtract. 

Tlie  appellants,  however,  rely  with  much 
confidence  on  the  decision  of  this  court  in 
Her.vford  v.  Davis,  102  U.  S.  235,  a  case 
coming  from  Missouri,  where  the  law  al- 
lovvs  and  sustains  conditional  sales.  But 
we  do  not  think  that  this  case,  any  more 
than  tliat  of  Hervey  v.  Khode  Island  Loco- 
motive Works,  will  be  foimd  to  support 
their  views.  The  whole  question  in  Hery- 
lord  V.  Davis  was  as  to  the  construction 
of  the  contract.     This  was   in   the  form  of 


I 


HARKXESS  t>.  RUSSELL  &  CO. 


401 


a  lease,  but  it  contained  pruvisionB  eo 
irrf'conuilal)le  wltli  the  iileu  of  its  bein>? 
really  a  lease,  and  ho  (lemonslruble  that 
it  wart  an  absolute  sale  witli  a  rewervation 
of  a  niortftaKe  lien,  that  the  latter  inter- 
pretation ivas  Kiven  to  it  by  the  court. 
Tliirt  interpretation  rendered  it  obnoxious 
to  the  statute  of  Missouri  requiring  niort- 
>tug«s  of  personal  property  to  bn  recorded 
in  order  to  be  valid  as  accMinst  third  per- 
sons. It  was  conceded  Ijy  the  court,  in 
the  opinion  delivered  by  Mr.  Justice 
StroDK.  that  if  the  agreement  had  really 
amounted  to  u  lease,  with  an  aureeiuent 
for  a  conditional  sale,  the  claim  of  the 
vendors  would  have  been  valid.  The  first 
two  or  three  sentences  of  the  opinion  fur- 
nish a  key  to  the  whole  effect  of  the  deci- 
sion. Mr.  .Tustiee  StrotiK  says:  "The  cor- 
rect determination  of  this  case  depends 
altt.Kether  upon  the  construction  that 
roust  begiven  to  the  contract  between  the 
Jackson  &  Sharp  Company  and  the  rail- 
road company,  ajiainst  which  the  defend- 
ants below  recovered  their  ju<lf;ment  and 
obtained  their  execution.  If  that  con- 
tract was  a  mere  lease  of  the  cars  to  the 
railroad  company,  or  if  it  was  only  a  con- 
ditioniii  sale,  which  did  not  pass  the  owu- 
ersliip  until  the  condition  should  be  per- 
formed, the  property  was  not  subject  to 
levy  and  sale  under  execution  at  the  suit 
i>f  the  defendant  apainst  theeompany.  But 
If,  on  the  other  hand,  the  title  passed  by 
the  contract,  and  what  was  reserved  by 
the  Jackson  &  Sharp  Company  was  a  lien 
or  security  for  the  payment  of  the  price, 
or  what  is  called  sometimes  a  mort^jajte 
back  to  the  vendors,  the  cars  were  subject 
to  levy  and  sale  as  the  property  of  the 
railroad  company."  The  whole  residue 
of  the  opinion  is  occupied  witli  the  discus- 
sion of  the  true  construction  of  the  con- 
tract :  and,  as  we  liave  stated,  the  conclu- 
sion was  reached  that  it  was  not  really  a 
lease  nor  a  conditional  sale,  but  an  abso- 
LAW  SALE* — 26 


lute  sale,  with  the  reserratioD  of  a  lien  or 
security  for  the  payment  of  tlij  pricv. 
This  ended  the  case;  for,  thus  interpreted, 
the  instrument  inured  as  a  mortKace  la 
fa vor  of  the  vendors,  and  ou^ht  to  have 
been  recorded  in  (jrder  to  ijrotect  them 
airainst  tliird  persons. 

I!ut  whatever  the  law  may  be  with  re- 
Kard  to  a  bona  fiile  purchaser  fronj  the 
vendee  in  u  conditional  sale,  there  Is  a  cir- 
cumstance in  the  present  rase  which  makes 
it  clear  of  all  dilliculty.  The  appellant  Id 
the  present  case  was  not  a  bona  lide  pur- 
chaser w  ithout  notice.  The  court  below 
find  that,  at  the  time  of  and  prior  to  the 
sale,  he  knew  the  purchase  price  of  the 
property  had  not  been  paid,  and  that 
Hussell  &  Co.  claimed  title  thereto  until 
such  payment  was  made.  Under  such  cir- 
cumstances, it  is  almost  the  unaninionR 
opinion  of  all  the  courts  that  he  cannot 
hold  the  property  as  against  the  true 
owners;  but  as  the  ruiinus  of  this  court 
have  been,  as  we  think,  somewhat  inisuo- 
derstood,  we  have  thouubt  it  proper  toex- 
ainine  the  subject  with  some  care,  and  to 
state  what  we  regard  as  the  >;eneral  rule 
of  law  where  it  is  not  affected  t)y  local 
statutes  or  local  decisions  to  theccjntrary. 

It  is  only  iiecessary  to  add  that  there  is 
nothing;  either  in  the  statute  or  adjudged 
law  of  Idaho  to  prevent,  in  this  case,  the 
operation  of  the  general  rule,  which  we 
consider  to  be  established  by  overwhelm- 
iuR  authority,  namely,  that,  in  the  alisence 
of  fraud,  an  aRreeraenr  for  a  conditional 
sale  Is  );oo<l  and  vnliil  as  well  against 
tliird  personsas  against  the  parties  to  the 
transaction;  and  the  further  rule,  that  a 
bailee  of  personal  i)roperty  cannot  con- 
vey the  title,  or  subject  it  to  execution  for 
his  own  debts,  until  the  condition  od 
which  the  agreement  to  sell  was  made, 
has  been  performed. 

The  judgment  of  the  supreme  court  of 
the  territory  of  Utah  is  affirmed. 


I 


HASTIE  0.  COUTUllIER. 


403 


HASTIE  et  al.  t.  COUTURIER  et  al. 

(9  Exch.  10-2.) 

Courts  of  Exchpriuer  Cliaiiiber.    June  25,  1S53. 

Error  on  a  bill  uf  e.\et'i)ti()iiH,  hh  allowed 
by  the  court  of  excheciucr  in  the  cawe  of 
Couturier  v.  IlaHtic,  S  Exch.  4(t.  The  lilil 
of  excci)tion.s  Hct  out  the  cviiU'iicc.ln  )  and 
contained  nn  alIe«ation  that  the  nieaniim: 
of  "free  on  hoard  "  Ih,  that  tlie  f^ooiJH  are 
on  l)onrd.  The  hill  of  (?xceiition8  hIhcj 
Htated,  that  the  lord  chief  haron,  at  the 
trial  of  the  cauHe,  ruled  iiHfollowH:  (li) 
"That  the  meaning  and  I'onMtruction  of 
the  contract  with  A.  Callender  wan,  that 
A.  (.'allender,  aw  imrchaser,  wns  to  take 
upon  hiiUHcIf  all  rinU,  from  the  time  of  the 
Bhipment  of  llic  corn  ;  tliat  the  purchaHcr 
houKht  the  car;;o,  if  it  existed  at  tlie  date 
of  the  contract;  hut  that  if  it  had  hern 
<lainaKeil  or  lout,  he  l)ou;;ht  tlie  licnefit  of 
the  iuHurance,  hut  no  more;  and  that  by 
HelliuK  the  carjjjo  the  vendor  undertook 
that  the  vendee  whould  have  it,  if  it  exist- 
ed, and  that  the  vendor  had  not  Hold  it 
tiefore  to  another.  And  the  lord  chief 
haron  then  further  ruled  and  directed  the 
jury,  that,  if  they  believe<l  the  evidence, 
the  sale  of  the  cargo  at  TnniH  by  the 
agents  of  the  defendants  waw  not  Huch  a 
Hale  as  to  defeat  the  contract,  and  that 
It  waH  rendered  necewKary  in  eotiHefinence 
<if  Hea  damage,  and  was  made  merely  to 
prevent  the  loss  beinu;  ho  great  aH  itotlier- 
wiflo  would  necessarily  have  been." 

Before  COLKKIDCE,  .MAULE,  CUESS- 
VVELL,  WKilirMAX,  WILLIAMS,  TAL- 
EOIJRD,  and  CKOMl'TON,  .1.1. 

Butt  (Bovill  with  him),  for  plaintiffs  in 
error,  the  defen<lantH  below,  (-'owling,  for 
dciendont  in  error. 

COLEHIDOE,  .1.— (After  Ktatlng  the 
pleadingH  jind  evidence  liiH  lordHliip  pro- 
ceeded : ) — The  caHo  was  originall.v  tried 
before  Martin,  B.,  who,  in  directing  the 
jury,  ruled  that  the  contract  imported 
that,  at  the  time  of  the  sale,  the  corn  was 
in  bxistence  as  such,  and  capable  of  deliv- 
ery, and  a  verdict  waa  found  for  the  de- 
feinlants,  the  plnintiffH  having  leave  to 
move  to  enter  a  verdict  in  their  favour  on 
all  the  issues  except  those  on  the  lifth  and 
sixth  pleas,  and  on  those  pleas  for  judg- 
ment non  obstante  veredicto.  The  case 
was  argued  before  the  lord  chief  baron 
and  Barons  I'arko  anil  Alilerson.  The 
lord  chief  baron  agreed  in  the  opinion  ex- 
pressed by  Martin,  B..  at  nisi  [)rius;  but 
the  othei'  learned  barons  differed  from 
him,  and  made  the  rule  absolute;  where- 
upon it  was  agreed  that  the  question 
should  be  brought  before  this  court  on 
a  bill  of  exceptions,  as  if  tne  lord  chief  bar- 
on had  directed  th(>  jury  in  conformity 
witli  the  oidnion  of  Barons  I'arke  and 
Alderson.  The  case  thereforecomes  before 
us  without  any  great  preponderance  of 
authority  in  favour  of  the  defendants  in 
error.  Nor  do  wo  find  in  th(>  arguments 
of  counsel,  or  in  the  judgment  of  the  court 
below,  any  case  referred  to  upon  which 
that  judgment  was  foundeil.  It  turned 
entirely  on  the  meaning  of  the  contract 
made   between    the   parties,  which  was  in 


these  terms:  "  Bought  of  Ilasfie  &  Uuteh- 
iiiHon  a  cargo  of  about  )  IMI  (|uarterH  of 
I  Salonica  Indian  corn  of  fair  average  qual- 
ity when  shippeil  per  the  KvrAn  I'age,' 
Captain  I'age.  from  Snlonica,  bill  of  ladinR 
dated  the  I'L'd  of  Eebrnarv,  iit  LVh  per 
I  quarter,  free  on  boar. I,  and  Including 
freight  and  insurance  to  a  safe  port  In  the 
j  Lnlted  Kliigcloin,  the  vessel  calling  at 
Cork  or  I'almouth  for  orders,  measure  to 
I  be  calculated  as  customary,  payment  at 
two  months  from  this  date,  or" in  cash. 
'  IcHs  discount  at  the  rate  of  t.'i  per  cent,  per 
I  annum  for  the  unexpired  time  upon  hand- 
ing shipping  documents."  .\n  attempt 
was  made  to  explain  this  dornnient  bv  ev- 
idence, but  failed.  Then-  is.  indeed,  an  ex- 
pression in  the  bill  of  exi'cptionH."  that  the 
meaning  of  free  on  board  is,  that  thegoodu 
are  on  board,"  which,  taken  literally,  may 
impf)rt  that  they  are  on  board  at  the  time 
when  the  words  are  used;  but  it  was  not 
contended  for  th?  plaintiffs  In  error  that 
such  is  the  true  meaning.  The  case,  there- 
fore, is  not  affected  by  that  statement, 
and  the  question  depenils  up<jn  the  ivords 
of  the  contract,  unexplained  by  any  evi- 
dence. 

For  the  plaintiffs  in  error  it  was  con- 
tended, that  the  parties  plainly  contract- 
ed for  the  sale  and  purchase  of  go.jds,  iliiit 
the  price  to  be  paid  was  for  goods,  and 
that  for  the  price  the  purchaser  was  to 
have  the  benellt  of  a  contract  to  carry 
them  anil  a  policy  of  Insurance;  that  a 
vend(»r  of  goods  undertakes  that  they  ex- 
ist, and  that  they  are  capable  of  being 
transferred,  although  he  may  not  stipu- 
late for  tlieir  condition;  ami  that  as  the 
good  in  (|uestiun  liad  been  sold  and  de- 
livered to  other  parties  before  the  con- 
tract in  question  was  made,  theri^  was 
nothing  on  which  it  could  opisrate-  and 
Barr  v.  Cibson,  :!  M.  &  \V.  :)!»0,  ami  Strick- 
land V.  'i'urner,  7  Exch.  L'os,  were  cited. 

On  the  otiier  hand  it  was  argued,  that 
this  was  not  B  mere  contract  for  the  sale 
of  an  ascertained  cargo,  but  that  the  pur- 
cliu.ser  bought  theadventure.  and  took  up- 
on himself  all  risks  from  'he  shipment  of 
the  cargo.  It  was  said  that  the  mention 
of  the  condition  of  the  cargo  at  the  time 
of  shipment  was  a  proof  of  the  intention  of 
the  parties  that  the  buyer  should  take  all 
risks  from  that  time  that  its  condition 
at  the  time  of  sale,  or  the  fact  of  its  exist- 
ence, could  not  then  bo  ascertained,  and 
therefore  the  purchaser  must  be  supposed 
to  have  taken  the  risks;  that  If  it  had  ex- 
isted, however  much  deteriorated,  the 
purchaser  must  have  taken  It,  although 
the  loss  had  been  all  but  total,  and  there- 
fore there  was  no  re^ison  for  exchnling  to- 
tal loss  from  the  risks  that  he  was  to 
bear;  that  if  it  had  ceased  to  exist  the 
consideration  wovild  not  fall,  for  the  pur- 
chaser wouhl  have  the  shipping  ilocu- 
ments.  It  was  further  argued  that  thi^ 
stipulation  for  payment,  which  would 
probably  have  to  be  made  before  thearrlv- 
al  of  the  cargo.  Indicated  an  intention 
that  the  purchaser  was  in  all  events  to 
pay  for  It,  on  account  of  thelnconvenience 
that  woulil  ensue  If  he  might  havetori>- 
claiin  the  money  back.  It  was  not  disput- 
ed that  the  cases  of  Hair  v.  (ilbson  and 
Strickland  v.  Turner  were  well  decliled. 


404 


HASTIE  V.  COUTURIER. 


It  appears  to  iis  that  tlie  contract  in 
question  was  for  tlio  sale  of  a  carRO  sup- 
posed to  exist,  ami  to  be  capable  of  trans- 
fer, and  lliat,  iunsinucli  as  it  liad  been 
sold  and  delivered  to  others  by  tiiecaptain 
before  the  contract  in  question  was  made, 
the  plaintiffs  cannot  recover  in  this  ac- 
ti(jn.  With  regard  to  the  description  of 
the  cargo  as  "  of  fair  averajipquality  when 
shipped,"  we  think  that,  if  those  words 
had  not  been  introduced,  it  must  have 
been  held  that  the  purchaser  of  a  cargo 
(jn  a  voyage  would  take  upon  himself  the 
chance  of  what  its  condition  at  the  time 
of  purchase  might  be,  and  that  this  clause 
was  introduced  for  his  benefit,  by  enabling 
him  to  object,  if  the  fact  were  so,  that  the 
cargo  was  had  when  shipped.  If,  in  Barr 
V.  Gibson,  there  had  been  a  stipulation 
that  the  ship,  when  she  sailed  on  the  voy- 
age during  which  she  was  sold,  was  sea- 
worthy, that  would  not  have  made  the 
purchaser  liable,  if  a  total  loss  harl  oc- 
curred before  the  contract  was  entered  in- 
to. It  has  been  said,  that  if  the  loss  had 
lieen  all  but  total,  if  the  cargo  had  become 
all  but  wortliU'88,  yet,  if  it  existed  in  spe- 
cie, the  purchaser  must  unquestionably 
have  been  bound,  and  therefore  there  is  no 
reason  for  holding  that  he  was  not  also  to 
take  the  risli  of  a  total  loss.  The  same 
argument  would  have  applied  in  Strick- 
land V.  Turner.  If  the  annuitant,  at  the 
time  of  the  sale  of  the  annuity,  had  been 
in  extremis,  and  had  died  the  next  hour, 
the  i)urchaser  would  have  been  bound  and 
could  not  have  recovered  the  purchase 
money,  but  was  held  to  be  so  entitled,  the 
annuitant  having  died  before  the  sale. 
Again,  it  has  been  supposed  that  there  is 
an  inconsistency  in  saying  that,  if  the  car- 
go had  sustained  sea-damage,  constitut- 
ing an  average  loss  covered  by  the  policy, 


it  would  pass  to  the  purchaser  so  as  to 
secure  to  him  an  indemnity,  l)ut  would 
not  pass  in  the  event  of  a  total  loss.  This 
seems  to  depend  upon  the  same  point,  and 
not  to  be  attended  with  any  realdithculty. 

If  the  contract  for  sale  of  the  cargo  was 
valid,  the  shipping  documents  would  iiass 
as  accessories  to  it;  but  if,  in  consequence 
of  the  previous  sale  of  the  cargo,  the  con- 
tract failed  as  to  the  principal  subject- 
matter  of  it,  the  shipi)ing  documents 
would  not  pass.  Although  we  cannot 
find  anv  decisicjn  in  point,  there  is  a  case 
of  Sutherland  v.  I'ratt,  11  M.  &  W.  l".)G, 
where  this  subject  was  mentioned.  In 
that  case,  the  plaintiff  had  txiught  goods 
on  a  voyage,  and  effected  an  insurance, 
lost  or  not  lost.  They  had  sustained  sea 
damage  before  the  sale,  and  the  purchaser 
sued  on  the  policy.  The  underwriters 
pleaded  that  the  goods  were  damaged  be- 
fore The  plaintiff  had  acquired  any  interest 
in  them.  On  demurrer,  it  was  held  that 
the  plea  was  bad;  but  the  very  learned 
counsel  who  argued  for  the  plaintiff  ad- 
mitted, in  answer  to  a  question  put  by 
i^arke,  B.,  that  if  the  goods  had  been  to- 
tally lost  before  his  contract  of  purchase 
was  made,  there  would  not  have  been  an 
insurable  interest,  as  a  person  cannot  buy 
a  thing  that  has  been  totally  lost. 

For  these  reasons,  it  appears  to  us  that 
the  basis  of  the  contract  in  this  case  was 
the  sale  and  purchase  of  goods,  and  that 
all  the  other  terms  in  the  bought  note 
were  dependent  upon  that,  and  that  we 
cannot  give  to  it  the  effect  of  a  contract 
for  goods  lost  or  not  lost.  The  conse- 
quence is.  that  the  judgment  of  the  court 
below  must  be  reversed,  and  entered  for 
the  plaintiffs  in  error  according  to  ar- 
rangement between  the  parties. 

Judgment  reversed. 


HATCH  V.  BAYLEY. 


407 


I 


HATCH  T.  BAYLEY. 

(12  Cush.  27.) 

Supreme  Judicial  Court  of  Mass.-ichusetts.    Suf- 
folk and  Nantucket.    Mar.  Term,  1853. 

In  thiH  action  a  verdict  was  returned 
for  the  plaintiff,  and  tlie  defendant  e.xcept- 
cd  to  the  rulinjL^B. 

C.  A.  Welch,  for  plaintiff.  E.  Wright, 
for  defendant. 

SHAW.C.  .1.  This  is  an  action  of  re- 
plevin for  twenty-three  barrelH  of  Hour, 
and  the  siiifjlo  ([uestion  \»,  whether  it  was 
the  property  of  the  plaintiff.  It  was  at- 
tached Uy  the  defendant  as  llie  iiroperty 
of  J.  H.  llooj^H.  It  ai)pearH  by  the  case, 
that  lloo;i;s.  previously  to  his  departure 
for  AlliMiiy  to  i)urclia.se  (lour,  promised 
the  plaintiff,  in  consideration  of  a  loan  of 
his  note  to  raise  money  upon,  to  si-ll  the 
I)laintiff  two  hundred  barrels  of  liis  pur- 
chase, at  prices  fi.xed.  At  Albany,  Hooys 
purchased  and  put  on  board  the  railroad 
cars  for  ISoston,  one  hundred  barrels  of 
one  brand  and  twenty-three  of  another, 
to  be  forwarded  to  Boston,  taking  the 
usual  receipt  or  way-bill,  niakins  the  said 
flour  deliverable  to  himself.  'I'he  flour 
was  forwarded,  and  Hooks  inclosed  to 
the  plaintiff  a  written  order,  making  the 
flour  deliverable  to  him.  This  the  plain- 
tiff notitieil  to  tlie  agent  of  the  railroad 
company,  and  at  the  same  time  paid  the 
freiiiht.  The  agent  took  the  plaintiff's 
directions  as  to  the  mode  and  place  of  de- 
livery; the  agent  marked  the  car  contain- 
ing it,  and  directed  the  car  to  be  run  on 
a  side-track  to  a  jioint  near  the  plaintiffs 
warehouse,  for  the  purpose  of  l)eing  there 
delivered;  but  the  flour  was  not  taken 
out  of  the  car,  nor  had  the  car  been  actu- 
ally removed.  All  this  occurred  before 
the  attachment.  'I'here  was  no  evidence 
of  any  l)ill  of  sale,  or  other  conveyance  of 
said  Hour,  from  Hoogs  to  the  plaintiff. 

The  court,  in  reference  to  this  evidence, 
which  was  not  controverted,  instructed 
the  jury,  that  if  tliey  should  find  that  the 
saiil  car.  containing  said  twenty-three 
barrels  of  Hour,  was,  prior  to  said  attach- 
ment, marked  as  aforesaid  by  the  clerk  of 
the  cori)oration,  in  the  jiresence  cif  said 
I)laintiff.  wlio  then  gave  the  foregoing  di- 
rection in  i-cgar<l  to  its  marking  and  dis- 
posal, it  w;is  a  sutlicient  delivery;  and 
that  it  was  not  necessary  that  the  corpo- 
ration shiMild  open  the  car,  separate  the 
twenty-three  barrels  of  Hour  from  the  rest 
of  the  merchandise,  or  run  the  said  car  on 
the  side-track,  or  do  any  other  act  to 
complete  the  delivery. 

These  directions,  we  think,  were  correct. 
No  bill  of  sale  or  other-  contract  in  writ- 
ing was  necessary  to  effect  an  actual  sale 
and  transfer  of  ijroperty  ;  the  verbal  con- 
tract made  by  the  said  Hoogs.  i[i  Itoston. 
to  sell  the  |)laiutiff  two  liundred  barrels  of 
tlour,  though  being  an  executory  con- 
tract, could  not  be  enforced  by  law,  by 
reason  of  the  statute  of  frauds,  without 
writing,  yet  when  it  was  actually  exe- 
cuted, the  property  passed    to  the  vendee. 

Then,  was  it  executed  by  a  snfliiient  de- 
livery? Tutting  the  tloni'  into  the  cars 
ut   Albany,  was   not   a   delivery,    because 


the  way-bill  made  the  flour  deliverable  to 
Hoogs  himself.  But  the  right  to  n-celve 
the  property  on  arrival  was  asHlgnaldo, 
and  when  Hi>ogs  ordered  it  delivered  to 
the  plaintiff,  and  the  company,  by  their 
authorized  agent,  aeknowleilged  the  plain- 
tiffs right,  took  his  dliections  as  to  the 
delivery,  then  marked  the  car  containing 
it,  with  directions  to  the  subordlnatCB 
of  the  company  so  to  deliver  the  merehan- 
1  dise,  it  was  a  good  constructive  delivery, 
[pursuant  to  the  agreemi-nt  to  sell,  and 
vested  the  property  in  the  vendee. 

In  general,  that  act,  which  changes  the 
control  and  dominion  of  property,  after 
an  agreement  for  a  sale,  that  whicli  su[ier- 
sedes  tlie  power  and  control  of  the  vendor 
and  transfers  it  to  the  vendee,  is  a  good 
delivery  to  pass  the  property;  such  as  h 
delivery  of  the  key  of  the"  warehouse, 
Wilkes  V.  Ferris,  ,">, Johns.  :{:!.'>;  Packard  v. 
Dunsmore,  lli:ush.2S2;  transfer  of  a  ware- 
house-keeper's receipt,  notified  and  assent- 
ed to  by  the  warehouse-kcpper,  Tu.x worth 
V.  Moore,  t)  I'ick.  .'547;  removal  of  a  horse 
from  vendor's  sale-stable  to  his  livery- 
stable,  to  keep  for  the  vendee,  ICIrnore  v. 
lSt<jne,  1  Taunt.  4.")S;  transfer  of  dock  war- 
rants for  goods  in  the  London  dock  ware- 
houses. Zwinger    v.  .Samiida.  7  Taunt.  205. 

In  all  these  cases,  tlie  ground  is.  that 
the  same  person  who  was  the  agent  of 
the  vendor  to  keep,  becomes  the  agent  of 
the  vendee  to  keep;  and  the  possession  of 
the  agent  is  the  possession  of  the  principal. 
Gardner  v.  llowland.  2  I'ick.  ."I'Jl);  (Jibuou 
v.  Stevens,  s  IJow.  :!S4. 

And  wo  tliink  the  judge  was  right  in  di- 
recting the  jury  as  he  did.  What  amounts 
to  a  delivery  of  goods  sold,  when  the  (acts 
are  found,  is  a  (luestion  of  law.  The  court 
left  it  to  the  jury  upon  the  evidence,  to 
decide  whether  the  facts  were  true,  and 
directed  them  hypothetically.  that  if  such 
facts  were  true,  they  constituted  a  sutli- 
cient delivery.  This  was  no  encroach- 
ment on  the  province  of  the  jury:  it  left 
them  at  liberty  to  weigh  the  evidence,  to 
draw  their  own  inferences,  and  decide  on 
the  facts;  and  the  judge  did  what  it  was 
his  province  to  do,  directed  them  in  niat- 
ter  of  law,  to  enable  them  to  return  a  gen- 
eral verdict. 

.Another  ground  o(  defence  is.  that  the 
sale  was  fraudulent,  in  regard  to  which 
the  court  instructed  the  jury  that  it  was 
necessary  that  the  defenclant  should  ad- 
duce stronger  proof,  to  establish  fraud, 
iV:c..  than  is  necessary  to  prove  a  debt  or 
a  sale;  that  the  presumption  was,  that 
every  man  conducted  honestly  without 
fraud;  and  when  fraud  was  alleged,  the 
proof  must  not  only  bt-  sutlicient  to  estab- 
lish an  innocent  act,  but  to  overcome  the 
presumption  of  honesty.  These  were  ob- 
viously general  remarks,  upon  the  nature 
of  evidence  in  application  to  facts  to  be 
proved  by  it,  and  pcrhiips  they  are  not 
stated  with  all  the  illustrations  which  ac- 
companied them,  or  precisely  as  they 
were  made. 

.\s  we  understand  them,  the  judge  in- 
tended to  say,  that  he  who  alleges  (rauiJ 
against  another,  is  bound  to  prove  It. 
Thatevery  man  is  iiresumed  toiict  lione«t- 
ly  until  tiie  contrary  Is  proved;  that  he 
who  charges  another  with  au   act  involv- 


408 


HATCH  V.  BAYLET. 


ing  moral  turpitude  or  legal  delinquency, 
must  prove  it;  that  as  tliis  is  an  allega- 
tion against  a  presumption  of  fact,  it  re- 
quires Bonievvhat  more  evidence  tlian  it  no 
such  presumption  existed.  It  carried  no 
direction  as  to  tlie  amount  of  evidence  re- 
quired, or  as  to  the  nature  of  evidence, 
wliether  positive  or  circumstantial,  hut 
only  that,  on  the  whole,  it  Uiust  be  some- 
what stronger:  and  we  cannot  perceive 
that  such  a  direction  ia  incorrect.  The 
ordinary  direction   to  the  jury  is,  that  be 


who  charges  fraud  must  prove  it  to  the 
satisfaction  of  the  jury.  We  tliinlc  it  not 
contrary  to  any  rule  or  principle  of  law 
for  the  judge  to  inform  the  jury,  that  as 
the  charge  of  fraud  is  a  charge  against  a 
presumption  of  fact,  perhaps  often  a  alight 
one,  .vet  the  jury,  In  order  to  be  satisfied, 
might  require  somewhat  stronger  evi- 
dence, than  would  suffice  to  prove  the  ac- 
knowledgment of  an  ol)ligation,  or  the  de- 
livery of  a  ctiattel.  1  Greenl.  Ev.  §  380. 
Exceptions  overruled. 


I 


HAWES  o.  WATSON. 


411 


HAWKS  et  al.  t.  WATSON  et  al. 

(2  Bani.  &  C.  540.) 

King's  Bench.    Jan.  28,  1824. 

Trover  for  u  qunntity  of  tallow.  Plea, 
not  K'i'lty. 

.M  the  trial  before  AlUtOTT,  C.  J.,  at 
tlie  Loniliin  Hittin^jH  after  MiclinelmaH 
term,  the  fnllowinir  facts  were  proved  for 
the  plaiiitiflH.  Tlie  plaintiffs  on  the  2oth 
of  Septeinhcr,  ls:;:{,  purchased  by  contract, 
of  Messrs.  .Moberly  &  Bell,  :J<I0  caskH  of  tal- 
low at  4i)s.  per  ewt.  On  the  27th  of  Sep- 
tember, ill  part  e.\ecution  of  their  con- 
tract, Moberly  &  Bell  sent  to  the  [ilaintiffs 
the  followinjr  transfer  note,  sisned  by  the 
defendants,  who  were  wharfingers: — 

"MessrB.  .1.  &  H.  Hawcs.— We  have  this 
day  transferred  to  your  ac<(nint  ( l)y  vir- 
tue of  an  order  from  .Messrs.  .Moberly  & 
Hell),  loo  casks  tallow,  ex  Matilda,  with 
charKes  from  October  10,  1S23.  H.  &  M. 
100  casks. " 

The  iil.Tinfiffs  then  cave  Moberly  &  Bell 
their  acceptance  for  £2SS0,  the  price  of  the 
tallow,  which  was  duly  paid,  and  after- 
wauls  sold  21  casks  of  this  tal'ow,  which 
the  defendants  delivered,  pursuant  to 
their  order.  .Moberly  &  Bell  stopped  pay- 
ment on  the  nth  October,  and  on  the  14th 
the  defendants  received  noticefrom  Haikes 
&  Co.,  the  oriKi'i'Tl  vendors  of  the  tallow, 
not  to  deliver  the  remaining  casks  lo  Mo- 
berly &  liell,  or  their  order;  and  the  de- 
fendants in  cunse(iu(nce,  refused  to  deliver 
the  remainder  of  the  tallow  to  the  plain- 
tiffs, upon  their  demanding  the  same.  On 
the  part  of  tlie  defendants  it  was  proved, 
that  .Moberly  &  Bell,  on  the  2('>th  .Septem- 
ber, had  iiurchased  of  Haikes  &  Co.  100 
casks  of  tallow  (the  same  that  were  after- 
wards sold  to  the  plaintiffs)  landed  out  of 
the  Matilda,  lyin;;  at  Watson's  wharf,  at 
£2  Is.  i;er  cwt.  to  be  paid  for  in  money, 
allowing  -%  pc  cent  discount,  and  four- 
teen days  'for  delivery;  and  on  the  same 
day  Kal'kes  &  Co.  c'lve  a  written  order  up- 
on the  defendants  to  weiKli,  deliver, trans- 
fer, or  rehouse  the  tallow.  Moberly  «&  Bell 
had  not  pnid  for  the  same,  nor  had  it  been 
weighed  subse(iueiitly  to  this  order,  up- 
on these  facts  it  was  contended  at  the 
trial,  on  the  jiart  of  tlie  defendants,  that 
they  were  not  bound  to  deliver  to  the 
plaintiffH  the  remaining  seventy-ninecasks 
of  tallow,  iiijisiiiuch  as  Haikes  &  Co.  had, 
as  lietween  them  and  .Moberly  &  Bell,  u 
rislit  to  stop  them  in  transitu,  the  deliv- 
ery to  Moberly  &  Bell  not  liein;;  perfect,  in- 
asmuch as  the  tallow  had  not  been 
weighed.  The  I>ord  Chief  Justice,  howev- 
er, wasof  opinion  that  whatever  the  ques- 
tion miglit  be  as  between  buyer  and  seller, 
the  defendants  having,  by  their  iioteof  the 
27tli  of  Septeml)er,  acknowledgpd  that 
thev  held  tlie  tallow  on  account  uf  the 
plaintiffs,  could  not  now  dispute  their  ti- 
tle; and  the  plaintiffs  had  a  verdict. 

The  .'\ttorney-(>eneral  now  moved  for 
a  new  trial,  upon  the  ground  taken  at 
the  trial.  Hanson  v.  Meyer,'  is  an  au- 
thority to  shew,  that  the  absolute  proper- 
ty in  the  tallow  would  not  vest  in  .\lober- 

'  6  East.  614. 


ly  &  Bell,  the  ttfHt  vendee,  until  It  was 
weighed.  The  contract  in  that  case  wa» 
In  terms  siniilar  to  the  contract  made  be- 
tween the  original  vendors  and  .Moberly 
&  Bell.  The  weighing  must  precede  the 
delivry,  in  order  that  theprlce  iiiaybeaH- 
certained.  In  that  case  too,  part  of  the 
goods  had  tieen  weighed  and  delivereil, 
yet  it  was  lield  that  the  vendor  might  re- 
tain the  remainder,  which  continued 
iinweighed  in  his  possession;  and  .Shepley 
V.  Davis^  is  also  an  autliority  to  the  Hame 
effect. 

ABBOTT,  C.J.  The  plaintiffs,  in  this 
case,  paid  their  money  upon  the  faith  of 
the  tran^-fer  note,  signed  by  tliC  defend- 
ants, by  which  tliey  acknowledged  that 
they  held  the  tallow  as  their  agents.  If 
we  were  now  to  hold,  that,  notwith- 
standing that  acknowledgment  and  that 
payment,  the  [ilaintiffs  are  not  entitled  to 
recover,  we  should  enatile  the  defend- 
ants to  cause  an  innocent  man  to  lose  his 
money.  To  hold  that  the  doctrine  of 
stoppage  in  transitu  api>lieil  to  such  n 
case  as  the  present,  woulil  have  the  effect 
of  putting  an  end  to  a  very  large  portion 
of  the  commerce  of  the  city  of  London. 

BaYLEY,  J.  This  appears  to  ine  very 
different  from  the  ordinary  case  of  vendor 
and  vendee.  In  such  cases,  justice  re- 
quires that  the  vendee  shall  not  have  the 
goods  unless  he  pays  the  price.  If  he  can- 
not pay  the  price,  the  vendor  ought  to 
have  his  goods  back;  tint  if  tlie  question 
arises,  not  between  tlie  original  vendor 
and  the  original  vendee,  but  lietween  the 
original  vendor  and  a  purchaser  from  the 
vendee,  that  purchaser  having  paid  the 
full  price  for  the  goods,  what  is  the  lion- 
esty  and  justice  and  equity  of  the  case? 
Surely,  that  the  vendee  who  has  paid 
the  price,  shall  be  entitled  to  the  posses- 
sion of  the  goods.  1  am  of  opinion,  that 
when  Messrs.  liaikes  &  Co.  signed  the  or- 
der to  transfer,  weigh,  and  di'liver,  that, 
according  to  tlie  settled  course  and  usage 
of  trade,  enabled  .Moberly  &  Bell  to  sell 
the  goods  again.  There  are  innny  cHses  in 
which  it  has  l)een  held,  that  if  the  Hrst 
vendor  does  any  thing  which  can  lie  con- 
sidered as  sanctioning  the  sale  by  his  ven- 
dee, that  destroys  all  right  of  the  former 
to  stop  in  transitu.  Stoveld  v.  Hughes, » 
Harman  v.  Anderson. ■* 

HOI.KOYD,  J.  I  think  that  the  note 
given  by  the  defendants  makes  an  end  of 
the  piesent  ()ucstion.  When  that  note 
was  given,  the  tallow  became  the  prop- 
erty of  the  ))laintiffs,  and  is  to  l>e  coiisld. 
ered  from  that  time  as  kept  liy  the  defend- 
ants as  theagentsof  theplainlills,  and  the 
latter  were  to  be  liable  froir.  the  loth 
October  for  all  charges.  This  ca.se  is  very 
different  from  that  of  Hanson  v.  Meyer. 
There,  there  was  a  sale  of  nil  the  veiidnr's 
starch  (the  quantity  not  being  ascer- 
tained) at  (il.  Iier  cwt.  The  order  was  to 
weigh  and  deliver  all  the  veiulor's  starch, 
and  a  part  having   been  weighed  and   de- 

'5  Taunt.  017. 
'  14  Kast.  .-.as. 
'  2  Caiiii).  24^ 


412 


HAWES  V.  WATSON". 


livered,  but  not  the  residue,  the  main 
question  hefore  tlie  court  was,  whether 
the  weighing  and  delivery  of  part  did  or 
did  not  in  point  of  law  operate  as  a  trans- 
fer of  the  pr<>j)erty  as  to  tlie  whole.  The 
court  held,  rightly,  that  it  did  not,  be- 
cause there  the  price  of  the  whole  which 
was  to  be  paid  for  by  l)llls  could  not  l)e 
ascertained  before  It  vras  weialied.  The 
delivery  of  part,  therefore,  was  not  a  de- 
livery of  the  whole,  but  the  order  was 
complied  with  only  as  to  the  part  which 
was  weighed  and  delivered,  and  the  prop- 
erty in  the  residue  remained  unchanged 
until  something  further  was  done.  It  was 
not  a  delivery  of  part  for  the  whole,  and 
therefore  it  did  not  operate  in  law  as  a  de- 
livery of  the  whole  so  as  to  divest  the 
vendor  of  his  right  to  stop  in  transitu; 
but  here,  the  wharfingers,  upon  the  re- 
ceipt of  the  order  directing  them  to  weigh 
and  deliver,  sent  an  acknowledgment  that 
they,  the  wharfingers,  had  transferred 
the  goods  to  the  vendees,  and  that  they 
would  be  considered  as  subject  to  charges 
from  a  certain  period.  I  think,  therefore, 
that  the  wharfinger  then  held  the  tallow 
as  the  gcKtds  of  the  plaintiffs  and  as  their 
agents,  although  there  was  not  any  ac- 
tual weighing  of  them;  and  that  the  plain- 
tiffs were  then  in  possession  by  thedefend- 
ants  as  their  agents,  they  having  acknowl- 
edged themselves  as  such  by  their  note. 
For  these  reasons  I  am  of  oi)inion  that 
the  plaintiffs  are  entitled  to  recover. 

BEST,  J.  I  am  also  of  opinion  that  the 
acknowledgment  which  has  been  given  in 
evidence  puts  an  end  to  all  question  in 
this  ease.  The  very  point  has  already 
been  decided  In  the  case  of  Harmon  v.  An- 
derson.5  There  the  wliai finger  had  trans- 
ferred the  goods  to  the  name  of  the  Ven- 
dee and  actually  debited  him  with  ware- 
house rent,  but  he  having  become  insol- 
vent the  sellers  gave  notice  to  the  wharf- 
ingers to  retain  the  goods;  and  upon  an 
action  of  trover  being  brought  against 
the  wharfingers  by  the  assignees  of  the 
vendee,  it  was  contended  that  the  seller's 
right  to  stop  in  transitu  continued;  but 
Lord  Elleiiborough  said:  "That  the 
goods  havinu  been  transferred  into  the 
name  of  the  purchaser,  it  would  shake  the 
best  established  principles,  still  to  allow 
a  stoppage  in  transitu.  From  that  moment 
the  defendants  became  trustees  for  the 
purchaser,  and  there  was  an  executed  de- 
livery, as  much  as  if  the  goods  had  been 
delivered  into  his  own  hands.  The  pay- 
ment of  rent  in  these  cases  is  a  circum- 
stance to  show  on  whose  account  the 
goods  are  held,  but  it  is  immaterial  here; 
the  transfer  in  the  books  being  of  itself 
decisive."  In  the  ensuing  term,  the  then 
attorney  general  (after  Lord  C.  J.  Gibbs) 
expressed   his  acquiescence  in  the  decision 


'2  Camp.  243. 


at  ni.si  prius.  In  that  case  indeed,  It  does 
not  appear  that  in  order  to  ascertain  the 
price,  it  was  necessary  to  weigh  the  goods, 
but  in  a  subsequent  case  of  Stonnrd  v. 
l)unkin,8  it  was  expressly  held  by  Lord 
Ellenborough  that  a  warehouseman,  who 
on  receiving  an  order  from  the  seller  of 
malt  to  hold  it  on  account  of  the  pur- 
chaser gave  a  writien  acknowledgment 
that  he  so  held  it  could  not  set  up  as  a 
defence  for  not  delivering  it  to  the  pur- 
chaser, that  by  the  usage  of  trade  the 
property  in  malt  sold  was  not  transferred 
till  it  was  remeasured  and  that  liefore 
tile  malt  in  question  was  remeasured,  the 
seller  became  bankrupt;  and  there  Lord 
Ellenborough  says:  "Whatever  the  rule 
may  be  between  the  buyer  and  seller,  it  is 
clear  the  defendant  cannot  say  to  the 
plaintiff  '  the  malt  is  not  yours'  after  ac- 
knowledging to  hold  it  on  hisaccount.  By 
so  doing  they  attorned  to  him."  It  ap- 
pears to  me,  too,  that  if  we  consider  the 
principle  upon  which  the  right  of  stoppage 
in  transitu  is  founded,  it  cannot  e.xtend  to 
such  a  case  as  the  present.  The  vendee 
has  the  legal  right  to  the  goods  the  mo- 
ment the  contract  is  executed,  but  there 
still  exists  in  the  vendor  an  e(iuitable 
right  to  stop  them  in  transitu,  which  he 
may  exercise  at  any  time  before  the  goods 
get  actually  into  the  possession  of  the 
vendee,  provided  the  exercise  of  that  right 
does  not  interfere  with  the  rights  of  third 
persons.  Now,  it  appears  to  me  impos- 
sible that  it  can  be  exercised  in  this  case 
without  disturbing  the  rights  of  third  per- 
sons, for  the  property  has  not  only  been 
transferred  to  the  purchaser  in  the  books 
of  the  wharfingers,  but  there  has  been  an 
acknowledgment  by  them  that  they  hold 
it  for  the  purchaser,  who  has  paid  the 
price  of  it.  It  has  been  said  that  there  has 
been  no  change  of  property.  If  there  has 
not,  I  do  not  see  how  there  can  be  any 
until  the  tallow  is  actually  melted  down 
and  converted  into  candles.  If  the  argu- 
ment on  the  part  of  thedefendantsb.°  valid, 
the  vendor,  if  he  is  not  fully  paid,  has  a 
right,  if  the  goods  are  not  weighed,  to 
stop  in  transitu,  even  though  they  have 
passed  through  the  hands  of  a  hundred 
different  purchasers  and  been  paid  for  by 
all  except  the  first.  It  appears  to  me  that 
we  should  disturb  an  established  prin- 
ciple if  we  held  that  this  could  be  done  in 
such  a  case  as  the  present.  I  think  the 
right  of  stoppage  in  transitu  is  an  equi- 
table right,  to  be  exercised  by  the  vendor 
only  when  it  can  be  done  without  disturb- 
ing the  rights  of  third  persons. '?  Here, 
that  cannot  be  done,  and  therefore  I  think 
that  Kaikes  &  Co.  had  not  any  right  to 
stop  in  transitu,  and  that  the  plaintiffs 
are  therefore  entitled  to  recover. 
Kule  discharged. 


'2  Camp.  344. 

'  See  Cuming  v.  Brown,  9  East,  506. 


1-.  i 


HEXSCHEL  0.  MAURER. 


415 


riEXSCHEL,  Adiu'r,  etc.,  v.  MAURER  et  al. 

(34  N.  W.  Rep.  926.  69  Wis.  576.) 
Sii|)reme  Court  of  Wisconsin.    Xov.  1,  1S87. 

.Appeal  fr(»ui  circuit  court,  Slieboygan 
roimty. 

TliH  facts  fully  appear  in  the  foUowlns 
Ktatenicnt  by  CASSOD.W,  J.: 

'I'luH  action  waH  coinniPnccd  February 
17,  Issi).  for  till'  forecloture  of  a  niortjjaiLi^ 
uiioii  real  estate  e.'jecuted  January  2,  ls77, 
by  one  t'onrad  Maurer,  (since  deceased,) 
and  the  defendant  Marie  .Maurer,  then  his 
wife  ■•ind  now  his  widow,  given  to  secure 
a  ()roniisr<()ry  note  of  even  date,  executed 
by  riaid  Conra<l,  an<l  both  running  and 
payable  to  the  i)laintiff8  intestate,  for 
$1, -(ID,  two  years  from  the  date  thereof, 
with  interest  at  S  per  cent.  Thecomplaint 
is  in  the  usual  form,  and  alleged  that  said 
George  died  intestate,  .September  27,  1SS4, 
and  that  the  plaintiff  was  appointed  such 
administrator.  .March  .">,  lsr>5.  The  said 
widow  and  the  minor  heirs  of  said  Con- 
rad, by  their  gunrdian  ad  litem,  byway 
of  answer,  in  eflect  denied  that  the  plain- 
tiff wan  the  owner  and  holder  of  said  note 
«ud  mortgage;  denied  that  there  was  any 
sum  due  or  payable  thereon;  and  allege, 
upon  information  and  belief,  in  effect,  that 
September  22.  l.SSl.  and  while  said  tieorge 
was  the  owner  and  holder  of  said  note 
and  mortgage,  and  in  his  last  sickness,  in 
contemplation  and  expectation  of  death, 
he,  the  said  (jeorge,  executed  and  ac- 
knowledged a  written  discharge  of  said 
mortgage,  in  the  presence  of  two  wit- 
nesses, who  subscribed  their  names  there- 
to as  such,  and  wherein  the  said  George 
ackno%vledged  satisfaction  and  payment 
in  full  of  said  mortgage,  and  thereby  re- 
leased the  same,  and  all  his  right,  title, 
and  interest  in  and  to  the  mortgaged 
premises,  and  thereby  authorized  the 
register  of  the  county  to  enter  such  satis- 
faction of  record  ;  that  September  26,  1nS4, 
ia  immediate  contemplation  and  expecta- 
tion of  death,  the  said  George  delivererl 
said  satisfaction  piece,  Itigether  with  said 
note  and  mortgage,  and  also  certain 
other  i)ersonal  property  and  clioses  in  ac- 
tion, to  his  uncle,  one  Fred  .Maurer. for  de- 
livery, and  with  ilireclion  to  deliver  said 
note  and  mortgage,  and  said  satisfaction 
thereof,  to  said  Conrad,  as  a  gift  and  re- 
lease of  said  note  and  mortgage;  that  at 
the  same  time  said  George  delivered  to 
said  Fred  a  written  order  to  the  effect 
that  he  deliver,  of  the  money  and  other 
personal  property  in  his  lianils,  $2.")  to 
Mrs.  Marie  Henschel  or  order,  and  the 
balance  to  his  said  brother,  Conrad,  and 
Mrs.  .Adolph  Henschel,  i;s  to  his  verbal  or- 
der; that,  upon  the  death  of  said  (Jeorge, 
and  during  the  life  of  said  Conrad,  said 
Fred  delivered  to  said  Conrad  said  note, 
mortgage,  and  satisfaction  piece,  as  so 
directed  by  said  (jeorge. 

.At  the  close  of  the  trial  the  court  found, 
in  effect,  that  thenotejind  mortgaiie  were 
executed,  and  payments  made  thereon,  as 
stated  in  the  complaint ;  that  September 
22.  Iss4,  and  while  of  sound  and  ilisposing 
mind  Hn<l  memory,  but  in  extremesiik- 
ness  and  expectation  of  death,  the  said 
<ieorge  made   and   cxecuteil   said  satisfac- 


tion piece;  that  on  the  same  day  he  deliv- 
ered the  same,  together  with  snld  note 
and  mortgage,  to  said  (onrad,  as  and  for 
a  satisfaction  of  said  mortgage,  and  subse- 
quently, and  on  the  same  day,  caused 
said  note  and  mortgage,  and  satisfaction 
piece,  to  be  placed  with  said  Fred  for  Hnal 
delivery  after  his  death,  without  any  con- 
dition or  control  over  the  same;  that 
said  note,  mortgage,  and  satisfaction  iilcce 
were  subse(|uently,  and  prirtr  to  the  com- 
mencement of  this  action,  delivered  to  said 
Conrad  by  said  Fred  ;  that  the  making  of 
said  satisfaction  piece,  and  the  delivery  of 
the  ?ame  with  said  note  and  niortKage. 
were  intended  and  made  as  a  release  and 
satisfaction  of  said  mortgage,  anil  the  In- 
debtedness thereby  secured,  and  a  gift 
causa  mortis  thereof  tothesaiil  Conrad, 
who  was  brother  to  said  (ienrge.  As  con- 
clusions of  law  the  court  found,  in  effect, 
that  said  satisfaction  constituted  a  good 
and  valid  gift  causa  mortis,  and  a  release 
and  discharge  of  said  mortgage  and  in- 
debtedness to  the  said  Conrad ;  that  thB 
plaintiff,  as  administrator,  had  received  no 
right  to  or  interest  in  the  mortgage;  that 
the  defendants  were  entitled  to  judgment 
dismissing  the  complaint,  and  adjudging 
said  note  and  mortgage  fully  satixlied 
and  discharged,  and  for  costs  and  dis- 
bursements against  tile  estate  of  said 
George;  and  judgment  was  ordered  there- 
<m  accordingly.  From  such  judgment  so 
entered  thereon  the  plaintiff  briuga  this 
appeal. 

Krez  &  Krez,  for  appellant.  Seaman  & 
Williams,  for  responilents. 

CASSODAY,  J.,  (after  stating  the  facts 
as  atjove. )  The  evidence  is  tcj  the  effect 
that  .September  22,  1S>>4.  the  plaintiff's  In- 
testateat  first  requested  oneCharles  Helns 
to  draw  his  will. and  to  give  all  his  prop- 
erty, except  *2."i  mentioned,  to  his  brother, 
Conrad,  and  liis  sister,  Mrs.  .\dolph  Hen- 
schel; that,  when  informed  that  it  would 
probably  cost  5()0  or  $70  In  the  probate 
court,  he  declined  to  make  a  will;  that  he 
then  asked  if  such  distribution  could  not 
be  made  in  some  other  way,  and  was  told 
by  Heins  that  it  could,  and  accordingly  the 
satisfaction  piece  wus  drawn  and  exe- 
cuted, and  then,  with  the  note  and  mort- 
gage, delivered,  Hrst  to  Conrad,  then  to 
the  uncle,  and  subsequently  to  Conrad,  as 
found  .  that  at  the  same  time  he  executed 
a  deed  of  ItiO  acres  of  land  in  .Marathon 
count.v  to  his  sister.  Mrs.  .\dolph  Hen- 
schel."and  delivered  that  to  her:  that  he 
theieupon  directed  her  to  deliver  the  deed 
to  his  uncle,  and  she  did  so;  that  at  the 
same  time  he  eave  to  his  uncle  an  order 
for  the  personal  property,  with  directinns 
to  keep  all  the  papers  until  he  ascertained 
the  value  of  the  .Marathon  county  lands, 
and  then  divide  the  personal  property,  so 
that  his  said  brother  and  sister  sliould 
each  have  one-half  of  all  his  property,  ex- 
cept that  he  should  give  .Mrs.  Herman 
Henschel  Sf2.'.;  that  In  executing  the  pa- 
pers he  wrote  his  own  name,  and  was  at 
the  time  physically  weak,  but  of  sounil 
mind,  with  no  hope  of  recovery,  but.  per- 
haps, with  na  e.\pectaiion  of  reclaiming 
the  property  if  hedid  ri-covcr;  and  he  died 


416 


HENSCHEL  D.  MAURER. 


five  days  thereafter.  Upon  these  facts  it 
is  urged  by  counsel  that  tlie  whole  trans- 
action, when  taken  together,  was  simply 
an  attempt  by  the  intestate  to  <iispose  of 
all  his  propertj;  by  will,  or  to  delegate  to 
his  uncle  the  power  to  do  so  upon  his 
death,  or  both  together. 

There  can  be  no  question  but  what  a 
person  of  sound  mind,  oven  in  extremis, 
may  make  a  partial  as  well  as  a  total  dis- 
position of  his  property  by  will.  The 
same  is  true  in  case  of  a  gift  as  to  any 
property  which  is  the  subject  of  gift.  The 
mere  fact  that  he  attempts  at  the  same 
time,  and  as  a  part  of  the  sacne  transac- 
tion, to  dispose  of  the  whole  of  his  prop- 
erty, but  for  some  cause  the  disposition  is 
ineffectual  as  to  a  part  of  it,  will  not  pre- 
vent its  being  effectual  as  to  the  other 
part.  Here  the  matters  of  con  veying  the 
land  to  the  sister,  and  the  directions  for 
disposing  of  the  personal  property,  are 
not  within  the  issues,  and  hence  not  be- 
fore us  for  determination.  No  question  of 
creditors  or  other  claimants  is  involved. 
The  only  question  presented  is  whether 
what  was  said  and  done  by  the  intestate 
constituted  a  complete  satisfaction  and 
extinguishment  of  the  note  and  mort- 
gage. A  mortgagee  may  undoubtedly, 
by  way  of  gift  to  the  mortgagor,  com- 
pletely satisfy  the  debt,  and  discharge  the 
mortgage.  Moore  v.  Darton.  4  De  Gex  & 
S.  517;  Lee  v.  Boak,  II  Grat.  182;  Uarland 
V.  Taylor,  52  Iowa,  503,  3  N.  W.  Rep.  510; 
Carpenter  v.  Soule,  SS  N.  Y.  251.  Where  a 
gift  of  personal  property  is  made  with  in- 
tent to  take  effect  immediately  and  irrev- 
ocably, and  is  fully  executed  by  complete 
and  unconditional  delivery,  it  is  certainly 
binding  upon  the  donor  as  a  gift  inter 
vivos,  even  if  the  donor  at  the  time  is  in 
extremis,  and  dies  soon  after.  Tate  v. 
Jjeithead,  Kay,  65S;  McCarty  v.  Kearnan, 
8<)  111.  2!)2.  But  where  such  intent  is  not 
manifest,  and  the  gift  is  otherwise  made, 
under  such  circumstancesit  will  ordinarily 
be  regarded  as  a  gift  causa  mortis. 
Rhodes  v.  Childe,  64  Pa.  St.  23,  24;  Grymes 


V.  Hone,  49  N.  Y.  17.  But  even  such  a 
gift  is  not  complete  without  delivery.  Id.; 
Wilcox  V.  Matteson,  53  Wis.  23,  9  N.  W. 
Rep.  Sl4.  Brunn  v.  Schuett,  59  Wis.  2G0, 
18  N.  W.  Rep.  2«0.  Such  a  gift  may  be  de- 
fined as  one  made  by  the  delivery  of  per- 
sonal property  by  the  donor  in  his  last 
sickness,  and  in  expectation  of  deatn  then 
imminent,  and  upon  condition  that  it 
shall  lielong  to  the  donee  if  the  donor 
dies,  as  anticipated,  without  revoking  the 
gift,  leaving  the  donee  him  surviving,  and 
not  otherwise.  Rhodes  v.  Childs,  supra  ; 
Grymes  v.  Hone,  supra  ;  Ogilvie  v.  Ogil- 
vie,  1  Bradf.  Surr.  Snti;  2  Quar.  I>aw  Rev. 
440;  21  Amer.  Law  Rev,  734,  and  cases 
there  cited.  But  even  such  a  gift  is  de- 
feated if  the  donor  survive  such  sickness. 
Staniland  v.  Willotr,  3  Macn.  &  (J.  r)(i4. 
Here  the  intestate, as  mortgagee,  actually 
delivered  the  note,  mortgage,  and  satis- 
faction to  the  mortgagor  personally  as  a 
present.  True,  the  intestate  subsequent- 
ly directed  the  mortgagor  to  deliver  them 
to  the  uncle,  as  he  directed  Mrs.  Adc.lph 
Henschel  to  deliver  the  deed  she  had  re- 
ceived from  him  to  the  uncle.  But  this 
was  apparently  done  in  order  that  the 
uncle  might  the  better  ascertain  the  value 
of  the  land  conveyed,  and  thus  ascertain 
the  difference  in  the  value  of  the  two  gifts 
thus  made,  and  then  divide  the  personal 
property  so  as  to  make  the  gifts  equal. 
Under  such  circumstances,  and  in  view  of 
the  apparent  absence  of  any  hope  of  re- 
covery, it  would  seem  that  the  note,  mort- 
gage, and  satisfaction  may  l)e  regarded 
as  so  delivered  to  the  mortgagor  as  an 
absolute  gift  in  prtesenti.  But  even  if 
there  was  an  absence  of  such  intent  to 
make  a  then  present  and  unconditional 
gift,  yet  as  the  delivery  by  the  donor  was 
complete,  and  he  was  at  the  time  in  his 
last  sickness,  and  died  soon  thereafter, 
without  revoking  the  gift,  we  must  re- 
gard it  as  a  valid  and  binding  gift  causa 
mortis. 

The  judgment  of  the  circuit  court  is  af- 
Brmed. 


HIGGINS  V.  DELAWARE,  L.  &  AV.  R.  CO. 


419 


HIGGINS  V.  DELAWARE,  L.  &  W.  R.  CO. 

(60  N.  Y.  553.) 

Court  of  Appeals  of  Now   York.    Feb.   Term, 
1875. 

.Vpoeal  from  order  reversing  jiidKinont 
ill  favur  of  plaintlft  and  diHiniHHiii^  pluin- 
tiff'H  eoiu|ilaiiit. 

Action  to  recover  the  vnlue  of  one  Inin- 
dred  tons  of  coal  allejjed  to  have  heen  piir- 
chnsed  by  i)laiiitiff  of  defendant,  and 
which  it  refused  to  deliver. 

On  .September  L'!),  1870,  at  a  retinlar 
monthly  auction  sale  of  coal,  held  by  de- 
fendant in  New  York,  pinlntiff  hid  off  one 
hundred  tons.  The  notice  of  sale  stated 
tliat  ninety  thousand  tons  were  to  Lesold, 
deliverable  at  the  company's  depot  dur- 
ing the  month  of  October,  li70,  upon  these 
teinis,  ainoHK  .jtliers: 

"Fifty  cents  per  ton,  in  city  bankable 
funds,  to  be  deposited  on  the  day  of  sale, 
us  a  security  for  the  fulfillment  of  the  con- 
tract by  the  purchaser,  and  the  balance 
to  be  paid  within  ten  days  thereafter  at 
the  ofiice  of  the  company,  when  the  order 
for  the  delivery  of  the  coal  will  be  given 
on  their  a^ent  at  Elizabethport.  The 
coal  to  be  taken  away  during  the  month 
of  October,  1870.  Should  the  purchaser 
fail  to  take  it  away  within  the  month,  the 
oompiny  may,  at  their  option,  at  any 
time  thereafter,  discontinue  furtlier  deliv 
eries,  and  retain  the  fifty  cents  per  ton  de- 
posited on  the  day  of  sale;  or  slniulil  the 
company  elect  so  to  do,  they  may  resell 
the  coal,  either  at  public  sale  or  other- 
wise, for  account  of  such  defaulting  pur- 
chaser, who  shall  i)ay  to  the  company 
any  deficiency  caused  by  the  coal  beiriE; 
sold  at  a  price  liss  than  that  agreed  orig- 
inally to  be  paid.  "  1 

"The  company  may  deliver  at  Hoboken,  j 
N.  ,J.,  all  or  any  portion  of  the  coal  now 
sold,  and  the  purchaser  shall  accept  the 
same  as  being  delivered  on  the  contract  j 
made  by  this  sale,  and  shall  pay  therefor 
ten  cents  i)er  ton  in  addition  to  the  price 
agreed  to  be  paid  for  the  coal  delivered  at 
Elizabethport." 

"Every  effort  Tvill  be  made  by  the  com- 
pany for  the  fulfillment  of  its  contracts 
for  the  delivery  of  coal ;  but  if  at  any  time 
the  business  of  the  company  is  so  inter- 
rupted by  storms,  floods,  breaks,  acci- 
dents, combinations,  turn-outs,  strikes 
amoiiij:  miners  or  other  employees,  or  by 
any  other  occurrence  whatsoever,  as  to 
materially  decrease  the  quantity  of  coal 
which  the  company  would  otherwise  have 
heen  able  to  obtain  and  deliver  during 
the  month  in  which  the  coal  now  sold  is 
deliverable,  the  company  will  not  hold  It- 
self liable  for  or  pay  any  damages  sus- 
tained by  reason  of  the  non-delivery  of 
the  coal  now  sold,  or  of  any  portion  there- 
of, although  a  portion  of  the  coal  that  is 
received  daring  said  month  may,  in  the 
usual  course  of  the  comp;iny'H  cojil  sales 
and  business,  be  •lispo.-.erl  of  otherwise 
than  in  the  fulfillment  of  the  contracts 
made  by  this  sale.  .Vorwill  the  company,  . 
In  case  the  coal  now  sold  is  not  delivered,  I 
undertake  a  pro  rata  distribution  among  ! 
the   respective   ijurchasers   of  what   is  de- j 


livered;  but  In  all  cbbcb  of  nondelivery 
from  any  of  the  above  caiisi-s  the  money 
paiil  on  coal  will  be  prijmptly  refunded." 

Nelson  Merrill,  for'appcllant.  Hamilton 
Odell,  for  resiiondent. 

FOLGER.  J.  At  the  special  terra  the 
judgment  in  this  case  was  put  iiiiiin  the 
ground  that  the  facts  found  in  tlir-  find- 
ings, anil  some  inferences  therefrom  made 
in  the  opinion,  brought  this  ease  within 
the  holdings  in  Kiniberlv  v.  I'ntchin,  lit  N. 
Y.  :t;50;  75  Am.  Dec.  :'M,  an. I  Kuswell  v. 
rarrinirton,  -IJ  N.  V.  lis,  1  Am.  Rep.  49N. 
The  learned  judge,  in  forming  his  opinion, 
liaving  arrived  at  the  concluHion  (Iwit,  hh 
a  matter  of  fact  and  inference,  the  sale 
was  of  a  specilii'd  quantity  of  coal,  to  be 
taken  from  a  specified  general  mass,  indis- 
tinguishnble  In  quality  or  value,  and  that 
it  was  the  inti'iition  of  the  parties  to  pass 
the  title  to  the  amount  sold,  deemed  the 
case  within  the  ]irinci|ile  of  those  author- 
ties,  anil  held  that  there  was  a  complete 
sale  to  the  plaintiff  and  a  perfect  title 
given  to  him. 

At  the  general  term  the  court  was  con- 
tent with  refuting,  to  its  satisfaction,  the 
theory  upon  which  the  special  term  had 
gone;  and  did  not  perceive  in  the  finilingH 
nnr  in  any  inferences  properly  deducilile 
therefrom,  that  the  sale  was  from  some 
certain  or  identilied  body  of  coal,  either 
in  bulk  or  included  in  any  other  mass  then 
being  anywhere  in  existence  or  capable  of 
iilentilication.and  so  it  held  that  this  case 
did  not  fall  within  the  rule  laid  down  in 
the  cases  above  cited. 

The  special  term  did  not  notice,  as  a  clr- 
cumstanceeiititled  toeffect  in  thedecisicii, 
and  the  general  term,  thoiigli  alluding  to 
it.  laid  no  stress  upon  it,  that  by  the  terms 
of  the  sale  to  the  plaintiff  he  was  liound 
to  take  away  the  coal  in  the  month  of 
October.  It  is  evident  that  this  was  a 
part  of  the  terms  of  sale  of  some  moment 
in  the  estimation  of  tlie  defendants,  for 
they  based  upon  it,  in  the  same  terms  of 
sale,  important  consequences.  A  failure 
of  the  buyer  to  take  away  all  tlie  coal 
bought,  within  the  time  specifieii, gave  the 
iletcndants  the  right  and  posver  to  refuse 
further  delivery,  and  to  forfeit  the  earnest 
nione.v  paid  by  the  l)uyer,  or  to  resell 
the  coal  on  the  buyer's  account,  and  at 
his  risk  of  loss.  .\nd  we  can  readily 
perceive  that  it  is  essential  to  the  success- 
ful prosecution  of  the  l)usiiiess  of  the 
defendants,  that  they  should  not  lie  com- 
pelled by  the  dilatorincss  of  their  ven- 
dees to  furnish,  upon  their  docks  at  Kill- 
abethport  or  Hoboken, space  for  the  k<*p- 
ing  into  succeeding  months,  of  tiie  coal 
sold  liy  them  deliverable  in  a  given 
month.  ilence  their  stipulation  in  the 
terms  of  the  sale  appears,  from  a  fair  con- 
sideration of  the  language  of  it, and  of  the 
other  parts  of  those  terms  and  of  the  cir- 
cumstances, to  be  of  the  essence  of  the 
contract,  to  have  been  really  intended  by 
the  parties,  and  to  have  formed  a  condi- 
tion precedent,  to  lie  observed  ami  kept 
by  file  idalntiff  if  he  wislied  to  lie  able  to 
retain  his  contract  and  to  have  It  enforce- 
able against  the  defendants.  Renj.  Sales 
(2d  Ed.). 481.    The  finding  Isthattheplaln- 


420 


HIGGINS  V.  DELAWARE.  L.  &  W.  R.  CO. 


tiff  demanderl  a  delivery  of  tliecoal  in  Feb- 
ruary, 1871.  There  is  a  finding  tliat  lie  did 
not  offer  to  take  it  away  until  then,  and 
hence  did  not  offer  to  in  th"^  month  of  Oc- 
tober, 1S70,  as  he  was  required  to  do  to 
meet  the  condition  precedent.  There  is 
lackinK  then  a  fact  which  should  have 
been  found  to  sustain  the  conclusion  of 
law  and  the  judRuient.  It  is  a  fact  which 
the  proofs  will  not  supply, for  theevidence 
was  that  the  defendants  were  ready  and 
willing  to  make  delivery  of  the  coal  in  Oc- 
tober and  November,  l.STO. 

It  may  not  lie  well  said,  that  though 
there  is  this  condition  precedent  in  the 
terras  of  sale,  the  defendants  had  pre- 
scribed the  only  remedies  for  themselves, 
in  ca.se  the  plaintiff  did  not  keep  the  con- 
dition. It  is  true  that  options  of  the 
defendants  were  provided  for;  they  could 
forfeit  the  earnest  money  paid  ;  they  could 
resell,  on  the  plaintiff's  account,  and  at  his 
risk;  they  could  discontinue  future  deliv- 
eries. But  these  wore  not  all.  There  was 
also  the  legal  right  of  every  contracting 
party  to  hold  himself  absolved  from  his 
obligation  when  the  other  contracting 
party  has  failed  to  keep  sfinie  condition 
precedent  which  he  is  bound  to  perform. 
Thus,  in  an  agreement  to  exchange  pieces 
of  real  estate  on  specified  terms,  and  to 
deliver  the  deeds  at  a  fixed  date,  "or  for- 
feit the  sum  of  f.'jOO,"  it  was  held  by  this 
court  tliat  the  partj-  not  in  default  might 
elect  to  sue  for  the  amount  named  as  a 
forfeit,  or  generally  for  his  damages  from 
a  breach  of  the  contract  by  the  other  par- 
ty, and  in  the  latter  action  was  not  limit- 
ed to  the  sum  named.  Noyes  v.  Phillips, 
CO  N.  Y.  408.  It  is  there  said  that  parties 
are  not  released  from  the  performance  of 
their  contract  by  reason  of  the  same  con- 
tract containing  a    penalty  for    non-per- 


formance. Here  the  options  reserved  to 
the  defendants,  of  a  forfeiture  of  the  earn- 
est money,  etc.,  uro  in  the  nature  of  pen- 
alties for  non-performance  by  the  plaintiff, 
but  the  relations  and  rights  of  the  con- 
tracting parties,  so  far  as  harmonious 
with  the  provisions  of  the  contract  re- 
serving option,  are  to  bo  determined  by 
the  legal  principles  applicable. 

Nor  do  we  think  that  this  case  falls 
within  the  principle  of  19  N.  Y.  and  42  Id., 
supra.  The  findings  of  thespecial  term  do 
not  set  forth  facts  suflicient  therefor.  Nor 
are  we  able,  from  the  evidence  in  the  case, 
to  make  inferences  which  will  sujiply  the 
lack.  There  is  not  that  in  the  testimony 
which  proves  or  indicates  that  there  was, 
either  at  Eliza bethport  or  at  Hoboken, 
at  the  time  of  the  sale,  a  mass  of  ninety 
thousand  tons  of  coal,  undistinguishable 
in  kind  and  quality  and  value  from  that 
contracted  for  of  the  defendants;  or  that 
at  that  time  there  was  an  ascertained 
body  of  coal  at  either  of  those  places,  all 
parts  of  which  were  of  the  same  value,  and 
undistinguishable  from  each  other.  Rath- 
er, it  appears  to  us,  that  the  terms  of  the 
contract  and  the  circumstances  of  the  case 
indicate,  that  the  ninety  thousand  tons  at 
that  time  offered  for  sale,  had  not  yet 
reached  either  of  the  contemplated  points 
of  delivery,  and  were  not  yet  gathered  into 
one  mass.  Nor  can  we  make  the  inference 
that  it  was  the  intention  of  the  defendants 
to  pass  the  title  to  the  plaintiff  before  ac- 
tual delivery  of  the  (juantity  he  contract- 
ed for.  But  we  do  not  elaborate  the  rea- 
sons for  these  conclusions. 

As  a  new  trial  would  not  afford  oppor- 
tunity to  change  any  of  the  facts  as  now 
presented,  we  affirm  the  judgment  to  the 
general  term. 

All  concur. 


»i 


HIGGINS  V.  MURRAY. 


423 


HIGGINS  V.  MURRAY. 

(73  N.  Y.  252.) 

Court  of  Appeals  of  New  York.    1878. 

Action  for  work  und  materials.  Defend- 
ant eiii])loj'efl  piniiitlff  to  manufacture 
eoine  circus  tcntw,  witliin  a  specifiofl  time, 
from  material  furniRlied  by  plaintiff.  No 
place  o(  delivery  or  price  was  Hpccifiod. 
Defendant  afterwardH  reiiuented  plaintiff, 
by  letter,  to  Hhip  the  tents  to  him  at  Lew- 
iHton.  He  Hhip|)ed  them  by  ateamboat, 
via  Portlan<l,  C.  O.  D.,  and  they  were  de- 
stroyed by  fire  on  the  way. 

S.  T.  Freeman,  for  appellant.  John  W. 
Weed,  for  reHpondent. 

CHURCH, C  .1.  The  action  is  not  strict- 
ly for  the  sale  of  the  article  nianufactured. 
but  for  work,  labor,  and  materials,  per- 
formed an<l  used  inits  manufacture  (Mixer 
V.  Howarth,  L'l  Pick.  20.");  32  Am.  Dec.  2.56) ; 
and  hence  is  not  within  the  statute  of 
frautls.  It  is  nndiK[)uted  that  the  plain- 
tiff [jcrformod  his  contract,  and  if  the  de- 
fendant hud  refused  to  take  the  tents,  an 
action  upon  the  agreement  would  have 
been  sustaineil.  Crookshank  v.  Burrell, 
IS  .Johns.  .oS;  '.)  Am.  Dec.  Is".  There  is 
some  confusion  in  the  juitliorities  as  to 
when  the  title  passes  to  the  purchaser  in 
such  cases.  In  Andrews  v.  Durant,  II  X. 
Y.  .'!.■>;  ti2  Am.  Dec.  55,  Denio,  J.,  la.vs  down 
the  rule,  that  in  such  a  case"  the  title  does 
not  pass  until  the  article  is  linished  and  de- 
livered, or  at  least  ready  for  delivery,  and 
api)roved  by  such  party;"  and  there  are 
other  authorities  to  thesanu-  effect.  Grip- 
pen  V.  N.  Y.C.  R.  Co.,  40  N.  Y.  36;  Comfort 
V.  Kiersted,  26  Marl).  473. 

It  is  urjred  in  this  case  that  the  title  did 
not  pass,  for  two  reasons  :  First.  IJccause 
there  was  no  acceptance;  and,  second. 
Because  the  plaintiff  shipped  the  property 
(-".  O.  D.,  thereby  refusing  to  deliver  until 
the  value  was  paid.  This  last  ground  was 
sustained  in  liaker  v.  Bourcicault,  1  Daly, 
24,  where  certain  cards  were  ordered  to  be 
sent  to  New  Orleans,  and  were  sent  C.  O. 
D.,  and  lost  at  sea. 

The  importdnt  question  to  determine  is 
when  the  liabilit.v  of  the  defendant  at- 
tached. If  the  article  had  burned  durins 
the  progress  of  construction,  it  is  clear 
that  no  action  would  lie,  for  the  reason 
that  the  contract  was  an  entirety,  und 
until  performed,  no  liabilit.v  wouhl  exist. 
And  this  rule  1  apprehend  would  apply 
when  the  contract  is  to  make  and  deliver 
at  a  [)articular  place,  and  loss  ensues  be- 
fore delivery  at  tli(>  place,  and  for  the 
same  reason.  But  when  the  contract  is 
fully  performed,  both  as  it  respects  the 
character  of  the  article,  and  the  <lelivery 
at  the  place  njireed  \ipon  or  implied,  and 
the  defendant  is  notified,  or  if  a  specified 
time  is  fixed,  and  the  contract  is  per- 
formed witliln  that  time,  ujion  Keneral 
principles  I  am  unable  to  perceive  why 
the  party  makiuR  such  a  contract  is  not 
liable.  One  person  nsirees  to  manufacture 
a  wacon  for  nnothcr  in  thirty  days  for 
?100,  and   the  other  atjrees  to   pay  for  it. 


The  mechanic  performs  his  contract.  la 
he  not  entitled  to  enforce  the  obligation 
against  the  other  party,  and  if  after  such 
performance  the  wa^on  is  deHtro.\ed  with- 
out the  fault  of  the  mechanic,  is  the  undls- 
charged  liability  canceled?  It  d<ieH  not 
depeml  upon  where  the  technknl  title  Is. 
us  in  the  sale  of  Roods.  It  was  upon  this 
principle  substantially  that  Adiard  v. 
Booth,  7  Car.  &  I'.  Ids,  was  derided.  The 
((uestion  was  submitted  to  tliejury  wheth- 
er the  work  of  printing  books  was  com- 
pleted before  the  fire.  8uiijinse  in  this 
case  that  the  defendant  had  refused  to  ac- 
cept a  delivery  of  the  tent,  his  liability 
would  have  l)een  the  same,  although  the 
title  was  not  In  him.  The  plaintiff  had  a 
lien  upon  the  article  for  the  valuo  of  his 
labor  and  materials,  which  was  good  as 
long  as  he  retained  possession.  Tills  was 
in  ;l)e  nature  of  a  pledge  or  mortgage. 
Retaining  the  lien  was  not  inconsistent 
with  his  right  to  enforce  the  liability  for 
wiiich  this  action  was  brought.  That 
liability  was  com[)lcte  when  the  request 
to  ship  was  made  by  the  defendant,  and 
was  not  affected  by  complying  with  the 
request, nor  by  retaining  the  lien  the  same 
as  when  the  request  was  made.  .\s  the 
article  was  shipped  at  the  request  of  and 
for  the  benefit  of  the  defendant  I  assuming 
tliat  it  was  done  in  accordance  with  the 
directions),  it  iollows  that  it  was  at  his 
risk,  and  could  not  impair  the  right  of  the 
(ilaintiff  to  recover  for  the  amount  due 
liim  upon  the  performance  of  his  contract. 

If  tlie  plaintiff  had  agreed  to  deliver  the 
tent  in  Lewiston  as  a  part  of  tlie  contract 
for  its  manufacture,  ho  coulil  not  have 
recovered  any  thing;  but  this  was  not  a 
Iiart  of  the  contract.  Suppose  the  tent 
had  reached  Lewiston  in  good  order  and 
the  defendant  had  refused  to  accept  or  re- 
ceive it,  his  liabilit.v  would  be  clear  and 
complete.  As  before  stated,  the  point  as 
to  who  had  the  title  is  not  <le<-iHive.  It 
may  be  admitted  that  theplaiiitiff  retained 
the  title  as  security  for  the  ilebt,  and  yet 
the  defendant  was  liable  for  the  debt  in  a 
proper  personal  action.  This  is  a  case  of 
misfortuDe  where  one  of  the  parties  with- 
out fault  must  incur  loss,  and  it  seems  to 
me  very  clear  that  the  legal  riiiht  is  with 
the  plaintiff.  A  point  is  mnile  that  the 
property  was  not  proi)erly  shipped.  It 
was  directed  to  the  defendant  at  Lewis- 
ton,  and  was  forwarded  to  rorthuxl  <in  a 
steamer  running  to  that  place.  It  does 
not  appear  but  that  was  the  usual  mode 
of  shipment  to  Ix-wiston.  and  the  devia- 
tion would  impose  the  oldigntion  upon 
the  consignee  at  the  latter  place  to  for- 
ward the  property  liy  a  coniie<-ting  car- 
rier. Wecanniit  presume  tliat  there  was 
no  connecting  route,  and  if  we  could,  it 
is  difficult  to  see  what  else  the  plaintiff 
could  have  done.  .\t  all  events  it  does 
not  appear  that  the  loss  was  occasioned 
by  the  defendant's  negligence  or  fault  lo 
not  properly  shipping  the  goods. 

The  judgment  must  bealUrmed. 

All  concnrexcept  ALLEN  and  MILLER, 
J  J.,  absent. 
.Judgment  afflrmcd. 


I 


•  I 


HILLESTAD  v.  IIOSTETTEB. 


425 


HILLESTAD  et  al.  v.  HOSTKTTEH  et  aL 

(49  N.  W.  Rep.  192,  4(i  Minn.  393.) 

Supreme  Court  of  Minnesota.     June  30,  1891. 

Appeal  from  district  court,  Polk  county ; 
MiM.H,  .Jud^e. 

A.  C.  Wilkinson,  for  appellants.  H. 
Stoenersou  and  iV.  H.  Avcrill,  for  respond- 
ents. 

VANDKRiiunoii,  J.  The  plaintiffs  sue  to 
recover  for  a  bill  of  Roods  Hold  and  deliv- 
ered to  the  defendants  and  to  Carver 
Bros.,  lunihernicn,  at  the  requeMt  and  by 
the  order  of  the  defeiidanls.  The  account, 
ns  rendered,  is  admitted  hy  the  pleadinfis 
to  be  correct,  except  as  to  an  alle;;ed  ex- 
cess of  $!).L'.">  in  the  account  with  t'iirver 
Bros.  The  only  issue  In  the  case  litigated 
was  whether  the  Roods  were  furnished  un- 
der an  agreement  that  they  were  to  be 
paid  for  by  the  defendants  in  lumber. 
The  defendants  allege  that  such  was  the 
affi'eement,  and  the  plaintiff.sdeny  it.  The 
parties  live  in  the  same  town,  the  plain- 
tiffs beinK  dealers  in  general  merchandise, 
and  the  defendants  engaged  in  selling  lum- 
ber. The  defendants'  evidence  tends  to 
prove  that  in  December,  issis,  they  and  the 
I'arvers  were  trading  with  another  mer- 
chant, and  that  at  the  request  of  the  plain- 
tiffs he  made  an  arrangement  with  them 
to  deal  with  them,  and  "take  goods  for 
lumber,"  and  "that,  at  plaintiffs'  re<juest, 
Carvers  Bros.,  who  were  lumbering  for  de- 
fendants, were  also  induced  to  get  their 
supplies  of  pl.nintitfa,  to  he  paid  for  in  the 
same  way.  There  was  no  error  in  allow- 
ing the  defendants  to  show  that  this 
change  was  made,  and  that  the  latter  re- 
questcil  the  Carvers  to  trade  with  plain- 
tiffs on  their  account.  This  was  an  item 
of  evidence  conhrmatory  of  the  defend- 
ants' claim  as  to  the  nature  of  the  agree- 
ment. One  of  the  Carvers  (().  F.  Carver) 
8Wt)rn  for  the  defendants  testihed  that 
there  was  some  trouble  with  plaintiffs 
about  their  orders,  and  that  one  of  the 
plaintiffs  explained  to  him  that  thereason 
was  that  the  i)ass-boo,k  was  not  present- 
ed, but  said  "that  it  was  all  right,"  he 
"had  made  a  trade  with  Hostetter, "  and 
"should  need  a  considerable  lumber  in  the 
spring."  The  witness  also  testilied  that 
he  told  him  in  the sameconversation  what 
Hostetter  had  said  "  that  he  had  made  a 
trade  with  him  to  get  goods  there,  and 
that  he  was  going  to  take  lumber.  "  O.  P. 
Carver  also  testilied  that  he  changeil  his 
trade  to  plaintiff  at  Hostetter's  request. 
He  was  then  asked  by  defendants'  counsel 
to  state  what  that  reiiuest  was.  This 
question  the  witness  was  allowed  to  an- 
swer, over  the  objection  of  plaintiffs' 
counsel,  and  in  his  answer  he  stated"  that 
Hostetter  wanted  him  to  trade  with 
plaintiffs,  because  he  had  arranged  with 
them  to  take  lumber,  and  he  was  to  take 
groceries.  AVe  think  it  was  error  to  allow 
the  witness  to  testify  as  to  the  terms  or 
particulars  of  the  reciuest.  It  was  inuna- 
terial  and  hearsay.  It  was  sutlicient  that 
iie  was    in  the  employ  of    the   defeiulanls. 


land  that  he  went  there  to  trade  nt  their 
reipiest.  At  the  close  of  this  witness' evi- 
dence the  plaintiffs'  counsel  moved  to 
strike  out  all  his  evidence.  The  court  an- 
nounced that  he  would  reserve  his  decis- 
ion for  the  time,  but  soon  after,  and  before 
plaintiffs  introduceil  their  testiinony  In  re- 
buttal, stated  that  the  olpje<-tionable  tes- 
timony above  referred  to  was  stricken 
out.  And  subseiiuently,  in  its  charge  to 
thejury,  the  court  expressly  so  advised 
the  jury,  distinctly  calling  their  attention 
to  the  fact  and  withilrawing  the  evidence 
from  their  consideration.  The  objection- 
able portion  of  the  answer  was  not 
strictly  responsive  to  the  question,  and 
shoulil  have  been  stricken  out  immediote- 
ly,  in  which  case  there  would  have  been 
no  error  to  com|)lain  of.  But  wc  think 
the  Intervening  delay  was  so  short  that 
the  action  of  the  court  in  striking  It  out, 
together  with  the  charge  on  the  subject, 
was  sutticicnt  to  counteract  any  imiires- 
sion  which  might  have  been  made  on  the 
ndnds  of  the  jury  by  this  item  of  evidence, 
liarticularly  in  view  of  the  rest  of  the  de- 
fendants' evidence  on  the  subj(K-t.  .\fter 
plaintiffs'  account  was  rendereil  to  the 
defendants,  in  the  spring  oflNS!),  the  latter, 
on  or  about  .lune  1st.  by  their  attorney, 
sent  them  written  notice  that  they  were 
ready  to  deliver  the  lumber  according  to 
agreement, and  awaited  their  order.    This 

I  was  objected  to  by  the  plaintiffs,  but  was 
received  liy  the  court  for  the  purpose  of 
showing  that  the  defendants  were  ready 
and  willing  to  perform  the  contract.  We 
lind  no  exception  in  the  record  to  this  rul- 
ing. The  court  instructed  tin-  jury  tlint 
tbey  could  only  consider  it  for  the  purpose 
mentioned;  and  we  think  there  was  no 
error  in  submitting  tlie  evidence  to  the 
jury.  The  time  for  the  delivery  of  the 
lumber  and  the  prices  arc  not  siii-citied  iu 
the  agreement  testilied  to  by  the  defend- 
ants. It  was  suthcient  that  they  were 
ready  and  willing  to  furnish  it  when  called 
for.      They    had    a     lumber-yard    amply 

'  stocked,  and  it  was  the  plaintiffs'  doty  to 
apply  for  anil  select  the  lumber  In  pay- 
ment of  the  amount  of  their  claim  ;  and 
they  would  be  entitled  toit  at  the  current 
market  rates.  I!ish.  Cont.  §  14;!(>:  Beede 
V.  Proehl,  34  Minn.  49S.  :.>7  .N.  W  Hep.  191. 
The  court  also,  in  the  same  conni-ction, 
stated  to  the  jury,  in  substance,  that  there 
was  some  dispute  as  to  the  effect  of  the 
letter  in  connection  with  defen<lnnt8'  tes- 
timony, but  they  might  consider  It  for 
what  it  was  worth,  or  "as  far  as  it  went, 
with  the  rest  of  the  case."  This  does  not 
ai>pear  to  beerrorfrom  anythlngdisclosed 
by  the  record,  and  it  is  not  siiecilically  ex- 
cepted to.  The  plaintiffs  excepted  gener- 
ally to  that  portion  of  the  charge  "In  re- 
gard to  the  way  or  manner  in  which  they 
might  consider"  the  lettiT."  This  Includes 
all  that  was  said  on  the  subject,  and  the 
exception  is  ineffectual  if  any  part  of  the 
instruction  excepted  to  is  projier,  which, 
ns  we  have  seen,  is  the  case  here.  We 
have  very  carefully  examined  the  entire 
record,  and  lind  no  errors  warranting  a 
new  trial.     Order  athrmed. 


HINCHMAX  r.  LINCOLN. 


427 


HINCHMAN  V.  LINCOLN. 
(8  Sup.  Ct.  Kep.  309,  124  U.   S.  38.) 

Supreme  Court  of  the  United  States.    Jan. 
9,  188S. 

In  error  to  the  circuit  court  of  tlic 
United  StatcH  for  tlie  southern  diatriet  of 
New  Yorli. 

Theo.  V.H.  .Meyer  nnd  Wayne  AfcVeuKh, 
{A.  H.  U'iiiterHtcen,  on  tiie  lirief,)  for 
pluiiitiff  in  error.  .\UKUKtuH  C.  lirown, 
for  (li'fendnnt  in  error. 

MATTHIOWS,  J.  ThiH  i.s  «n  nction  at 
law  lirouKlit  liy  Kufus  P.  I^ineoln,  a  citi- 
zen of  .New  York.anainMt  Cliarles  .S.  Ilinch- 
inan.  a  citizen  ol  Pennsylrania,  to  recover 
flH.OOU  an  the  agreed  price  and  value  of 
certain  HccuritieM,  stoi-ks,  and  UondH  al- 
iened to  have  lieen  Hold  and  delivered  l>y 
the  plaintiff  to  the  defendant.  The  wale  iH 
alleged  to  have  taljen  place  (jn  .luly  n,  1>n'.'. 
It  is  set  forth  in  the  complaint  that  the 
plaintiff  a('(|Uired  title  to  the  Hecurities  in 
qucHtion  b>  purchase  of  one  John  K. 
IJotlnvell,  HUhject  to  any  claim  Wells, 
Fnrtjo  &  Co.  had  upon  the  same  for  ad- 
vances  madeliy  them  to  or  for  the  account 
of  the  said  Both  well;  "that  thereafter 
this  plaintiff  paid  to  Wells,  Far^o  &  Com- 
pany the  amount  of  their  said  advances, 
and  took  possession  of  said  seenrilics, 
Htocks,  and  honds;  hut  stated  to  the 
ahove-nameil  defenilant  that  iie  was  will- 
intrand  wi>uld  pay  over  to  the  Storniont 
Silver  Minins;'  ('•iinpany,  which  conipany 
was  a  111  rue  creditor  of  llie  said  Hotlnvell, 
and  in  which  company  said  defendant  was 
very  larjrely  intereste<l,  any  surplus  which 
he  derived  in  any  way  from  said  securi- 
ties, stocks,  and  lionds,  after  havini;  re- 
imhursed  himself  in  the  sum  of  aliout  $L'(!.- 
(lUO  aiKl  inti-rest  for  advances  theretofore 
made  by  hiin  to  and  tor  the  account  of 
the  said  I'.othwell. "  The  answer  ilenied 
the  alleged  sale  and  delivery.  The  aclhin 
was  trieil  in  the  circuit  court  of  thoUuited 
States  for  tlie  .Southern  district  of  New 
York  hy  a  jury.  There  wjis  a  verdict  in 
favor  of  the  plaintiff,  on  which  judgment 
was  renilered,  to  reverse  which  this  writ 
of  error  is  prosecuted.  A  hill  of  excep- 
tions sets  out  all  the  evi('ence  in  thecause, 
together  with  the  charge  of  the  court,  and 
the  i'Xcei)lions  taken  to  its  rnliims.  At 
the  close  of  the  testimony,  defendanfs 
counsel.  amon>;  other  things,  reiiuested 
tlie  court  to  charjie  the  jury  "that  there 
i.s  no  evidence  in  the  case  of  a  completed 
sale  of  the  securities  to  the  defendant; 
nnd  the  plaintiff,  therefore,  cannot  re- 
cover." This  recpiest  was  refused,  and  an 
e.\ciption  taken  hy  the  defendant.  This 
raises  the  srenerai  (inestion  whether  there 
was  snIHcient  evidence  In  support  of  the 
plaintiff's  case  to  justify  the  court  in  suh- 
mittiiiK  it  tt)  the  jury.  The  defense  rested 
u()oii  two  iiropositions:  (1)  That  there 
was  no  evidence  of  any  asreement  be- 
tween the  parlies  for  a  sale  and  purchase; 
nnd  (u'i  that,  if  there  were,  the  airreemeiit 
was  not  in  wrfticiy:,  and  there  hail  been  no 
receipt  and  acceptance  of  the  subject  of 
the  sale,  or  any  part  thereof,  hy  the  de- 
fendant; anil  that  coiiKeiiiiently  the  asfee- 
nient  was  within  the  prohibition  of  the 
statute  of  frauds  in  New  York. 


In  reward  to  the  first  branch  of  the  de- 
fense, we  think  there  was  sufllrlent  evi- 
dence of  a  verbal  agreement  between  the 
parlies  for  the  sale  of  the  sefurltlrs  at  the 
pricenamed.  It  ai)peared  in  evidence  thHt 
the  plaintiff,  having  acquired  title  and 
possession  to  the  securities  previously 
lieloiiKinK  to  Bothwcll  by  paving  oft  the 
advances  due  to  Wells,  Far«o  &  Co.. 
agreed  with  the  defendant,  as  represent- 
inix  the  Storniont  .Silver  .Minini;  Coinpnny, 
to  Kive  to  that  ciiinp;inv  and  ether  cred- 
itors of  Clark  and  I'.othwell  the  beiielit  of 
any  Hur[)lii3  there  nii;:ht  be  after  the  pay- 
ment of  the  amount  due  to  the  plaintiff. 
There  is  evidence  tendinR  tn  show  that 
thereupon,  a  siii;j;estion  havin>;  lieen 
made  that  the  defendant  should  purrhasu 
the  securities  from  the  plaintlft.  it  was 
agreed  between  them  th'it  the  plaintiff 
would  sell  and  the  defeiid;int  would  take 
them  at  the  price  of  *ls,Ot>i).  jind  the  next 
day  at  3  o'clock  wjis  appointed  ns  the 
time  for  delivery,  [ly  way  of  explanation, 
and  as  havinc  a  bearing  upon  other  items 
of  evidence  in  the  cause,  it  is  |>roper  to 
say  that  the  defendant's  testimony  In 
denial  of  the  fact  uf  the  aureeinent  tends 
t<j  the  point  that  the  proposed  purchase 
hy  him  was  not  in  his  Individual  capac- 
ity, but  as  the  representative  of  the 
Storinnnt  Silver  Minini;  Coiniinny,  of 
which  he  was  one  of  the  trnstces,  anil  was 
made  conditional  on  his  procuring  the 
assent  thereto  of  the  other  trustees.  We 
assume,  however,  in  the  further  consl  I- 
eration  of  the  c;ise.  that  the  jury  were 
warranted  in  lindlnK  the  fact  of  a  verlial 
nureement  of  sale  as  alleLced  by  the  plain- 
tiff. The  question  as  thus  narrowed  Ih 
whether  there  was  sulMcient  evidence  to 
submit  to  the  jury,  of  a  recelutand  accept 
ance  by  the<lefen(laiit  of  theseeiiritii-H  sold. 

It   appears   that   on  July  *<,  l><s-,  in  pur- 
suance of  the   appointment    made  the  day 
previously,   the    plaintiff    handed    the  se- 
curitics   in  question,   at   the  ollice  of  the 
storniont    Silver  .Minin-;  Company  in  New 
Y'ork.    to   Schuyler   Van    Kensselaer.  who 
was  the  treasurer  of   that   company,  and 
to(d;  from  him  the  following  receipt: 
"Ollicc  of  Storniont  Silver   .Mining  Com- 
pany, No.  2  Nassau,  Cor.  of  Wall  Street. 
"New  York.  July  8,  ISS-J. 
"President,  William  .S.  Clark. 
"Secretary,  John  U.  Both  well. 

"Ueceived  of  Dr.  Itufus  P.  Lincoln  the 
followini;  certificates  of  stock  on  behalf 
of  C.  S.  Iliiichman,  and  to  In- deli vereil  to 
him  when  he  fiillills  his  contract  with  Ur. 
Lincoln  to  purchase  8aid  stocks  fur  9ls.- 
(lOii  for— 

l's.4(lii  shares  .Storniont  Silver  M'g  Co. 


San  Itriino  Copper  M'k  Co. 
Kaiile  Silver  .Mv:  Co. 
Mile  (iolil  Qimrt/.  Xi'tfCo. 
Starr  (irovc  Silver  .NI'k  Co. 
Menio  (>idd   (Jiiartz  Co..   & 
order  on  Wells.  Kariro   & 
Co.     fur     4.'.,(IOO     siiureM 
tiunrtz  Co. 
Satemo  tiold  Quart*  Co. 
.V.  Y  &  Sea  lleach  It.  U.  Co. 
.Mso  $!»,.'.l)0  in    llrst    mortj:a;ie   bonds   of 
the  I'attle  -Mn.  &  Lewis  K.  I!.  Co. 

"Schnvler  Van  Kensselaer. 
"  W  itness :     M .  W ."  Ty  ler.  " 


24,:!<iO 

MIO 


LM',> 
1.410 


COO 
100 


428 


HINCHMAN  V.  LINCOLN. 


The  ilefpn'I.Tnt  was  not  present.  The  re- 
ceipt, sinned  by  Van  Rensselaer,  and  which 
he  nave  ti)  the  plaintiff,  was  witnessed  hy 
M.  \V.  Tyler,  the  plaintiff's  attorney,  and 
had  been  prepared  by  him.  The  securi- 
ties mentioned  therein  are  the  same  with 
those  described  in  the  comjilaint.  For 
the  purpose  of  proving  the  authority  of 
Van  Rensselaer  to  riceive  and  receipt  for 
the  securities,  some  correspondeiH-e  be- 
tween the  parties  was  put  in  evidence  by 
the  plaintiff,  the  material  parts  of  which 
are  as  follows:  On  July  21,  1SS2,  Tyler, 
as  attorney  for  the  plaintiff,  wrote  to  the 
defendant  as  follows:  "1  was  much  dis- 
appointed in  receivinj;  .your  letter  this  aft- 
ernoon, postponing?  your  appointment 
with  me  in  re  Lincoln  neRotiation.  When 
Dr.  Lincoln  accei)ted  your  offer  of  f  IS.OOO 
for  his  position  in  reference  to  the  Both- 
well  securities,  he  did  so  unqualifiedly, 
without  even  sucsesting  a  modification 
of  your  offer,  in  the  hope  that  in  this  wn.v 
he  would  expedite  a  c<inclusion  of  the 
matter,  and  bolievina;  that  nothinp;  was 
open  except  the  delivery  of  the  securities, 
and  the  receipt  of  the  price.  This  was  on 
.lul.v  7tli.  On  .fuly  8tli,  learninp;  from  Mr. 
Van  liensselaer  that  you  had  left  word 
with  him  to  receive  the  securities,  Dr.  L. 
called  on  .Mr.  Van  R.,  and  left  with  him 
the  securities  just  as  be  received  them. 
Now,  under  these  circumstances.  Dr.  L. 
feels  as  if  there  was  nothing  left  to  be 
done  except  the  pa.vment  of  the  money, 
and  that  tiUKlit  not  to  take  very  long. 
Now,  I  will  do  anything  to  accommodate 
you  in  this  matter  in  the  way  of  an  ap- 
pointment. If  it  is  inconvenient  for  you 
to  see  me  ill  New  York,  if  you  will  appoint  an 
early  day.  I  will  meet  you  in  I'hiladelphia. 
If  you  desire  anything  in  (larticular  should 
be  signed  or  iloue  by  Dr.  Lincoln  in  ad- 
dition to  what  he  has  done  already  in  de- 
livering the  securities  to  Mr.  Van  R.,  if 
you  will  write  me  what  yon  request.  I 
will  prepare  it  and  take  it  on  witli  ine  for 
delivery  to  you."  On  the  same  daj'  the 
plaintiff  wrote  to  the  defendant  as  fol- 
lows: "  Agreeatile  to  a  note  from  Col.  Tyler, 
I  went  down  town  this  P.  .\J.  to  meet  you 
as  per  appointment,  and  receive  payment 
for  Storniont  anu  other  stocks  in  accord- 
ance with  your  offer.  I  was  especially 
disappointed,  for  1  had  promised  to  ap- 
ply this  money  this  week  to  cancel  that 
which  1  borrowed  when  I  took  up  the 
stock.  I  hope  nothing  will  prevent  your 
carri'ing  out  our  airangeiiient  by  Monday 
or  Tuesda.v  at  the  furthest,  ami  I  will  es- 
teem it  a  favor  if,  on  receipt  of  this,  you 
will  telegraph  me  when  I  shall  receive  a 
check  for  tlie  amount  of  the  considera- 
tion." In  answer  to  this,  the  defendant 
wrote  to  the  blaintiff  from  Philadelphia, 
.luly  22,  ISSL',  as  follo%vs:  "Dear  Sir:  Your 
favor  of  the  21st,  as  well  as  Mr.  Tyler's, 
duly  received,  i  did  not  understand  that 
the  negotiation  between  us  was  finally 
concluded,  but,  as  I  explained  to  Mr.  Ty- 
Itr,  there  were  some  otherquestions  which 
would  have  to  be  settled  before  I  could 
act  in  the  matter,  on  account  of  my  being 
a  trustee.  I  told  Mr.  Van  Rensselaer 
that  he  could  receive  the  Stonnont  stock 
held  by  you  for  joint  account  of  yourself 
and  Stormont,  without   requiring  you  to 


advance  any  more  mone.v,  and  that  1 
would  arrange  with  you  about  it;  and 
he,  knowing  that  I  was  in  negotiation 
with  you,  took  charge  of  the  whole  as 
handeil  to  him  by  Mr.  Tyler,  your  coun- 
sel. There  are  several  questions  which 
come  up  ill  regard  to  it,  and  I  cannot  give 
you  any  definite  reply  until  1  have  con- 
ferred with  counsel  and  my  co-trustees 
on  the  subject.  My  advice  to  you  is  to 
exchange  the  .Stormont  stock  for  receipts, 
as  a  majority  have  already  done,  on  re- 
ceipt of  this;  and  if  you  do  so,  and  not 
convenient  for  you  t(j  advance  the  con- 
tribution for  additional  stock,  I  will  see 
that  it  is  carried  until  we  have  an  oppor- 
tunity to  fix  up  the  whole  matter. " 

It  is  further  in  evidence  that  a  short 
time  after  the  date  of  Van  Rensselaer's  re- 
ceipt, it  was  seen  by  the  defendant,  but 
he  said  or  did  nothing  to  repudiate  it. 
Tyler  also  testifies  that  on  July  20,  1882, 
he  met  the  defendant,  and  had  this  con- 
versation with  him:  "1  said  to  Mr.  Hinch- 
man  that  I  had  been  looking  for  him  for 
several  days,  and  that  I  supposed  he  knew 
we  had  (leiivei;ed  the  securities— the  Both- 
well  securities — to  Mr.  Van  Rensselaer, 
as  he  had  directed;  and  he  said,  'Yes, 
that  was  all  right;'  and  I  said,  'Well, 
now,  when  will  you  be  able  to  close  this 
matter?'  'Well,'  he  says,  'I  am  in  a  great 
hurry  this  morning,  but  I  will  come  to 
your  office  certainly  this  afternoon  or  to- 
morrow afternoon,  at  three  o'clock.  You 
can  rely  upon  my  coming  and  seeing  you 
upon  one  or  the  other  of  those  days.'" 
The  plaintiff  also  testified  that  he  had  an 
accidental  meeting  with  the  defendant  at 
Long  Beach  about  the  first  of  August, 
1882.  The  defendant  was  in  comiiany 
with  his  attorney,  Mr.  Meyer.  The  inter- 
view is  stated  by  the  plaintiff  as  fi  witness 
as  follows:  "I  spoke  to  him.  I  do  not 
know  that  he  recognized  ine,  for  I  was 
not  well  acquainted  with  him  before, 
and  he  introduced  me  to  Mr.  Meyer,  and 
he  said,  'This  is  Dr.  IJncoln,  from  wlioni 
I  have  the  Bothwell  securities ;' and  we 
had  some  conversation  about  it,  but  noth- 
ing very  definite,  althougli  there  came  up 
during  the  conversation  a  statement  that 
there  was  some  controversy  about  it.  I 
don't  know  whether  I  made  the  state- 
ment, or  .Mr.  Meyer,  or  Mr.  Hinchman.  I 
remarked  that  there  might  be  some  differ- 
ence— had  heard  something  about  some 
difference — of  oi)inion  about  it,  but  that 
I  had  none;  and  I  told  Mr.  Meyer  that 
the  idea  of  turning  them  over  to  the  Stor- 
mont Company  was  an  afterthought  of 
Mr.  Hinchman;  that  I  conceded  nothing 
of  the  kind.  1  never  had."  The  following 
letter  also  is  in  evidence: 

"Office   of   Stormont  Mining  Company  of 

Utah,  No.  2  Nassau,  Cor.  of  Wall  St. 
"President,  Charles  S.  Hinchman. 
"Secretary  and   Treasurer,  Schuyler   Van 
Rensselaer. 

"New  York,  August  24,  1SS2. 
"Schuyler  Van  Rensselaer,  Esq.,  Sec'y 
and  Treas.  Stormont  S.  M.  Co.,  No.  2 
Nassau  St.,  N.  Y.— Dear  .Sir:  Dr.  Lincoln, 
through  his  attorney.  Col.  M.  W.  Tyler, 
having  seen  (it  to  disavow  the  understand- 
ing and  agreement   by   which  he  obtained 


H  IN  CUM  AX  V.  LINCOLN. 


429 


'  his  [><)rtiti()n  '  in  carryint;  rlie  .1.  K.  Itoth- 
w'll  Hcciiriticw  in  .vcjur  liiin<l.s  left  tlicrc  by 
(,'i)l.  Tyler,  lifter  conferciitM;  with  n  tn;ij<Jr- 
ity  <j[  (jiir  truxtpos,  J  am  inntrnctcil  to  no- 
tify yi)ii  to  rotiiii)  possession  of  sniil  seeii- 
ritifs  until  a  court  of  competent  juriKilic- 
tion  KJiall  direct  you  wliat  to  ilo  Willi 
tiiem  :  I  eluimint;,  uh  trustee,  for  tlio  lieii- 
efit  of  Storrnont  treasury,  an  e(|uitalilc 
ami  bona  fide  interest  therein.  I'lease 
acknowledKe  safe  receipt. 
"  Y<iurH,  truly,        t'lwis.  S.  Hinchinnn, 

"Prest.  and  Trustee  S.  S.  M.  Co." 

There  was  some  other  correspondence 
between  the  parties  not  material  to  the 
present  point,  but  n(jthin>;  further  was 
done  until  November  Hi,  ISSJ,  when  a 
written  demand  was  maile  by  the  plain- 
tiff u|ion  Van  Hensselaer  for  the  return  of 
the  securities.  Thi.s  demand  was  read  in 
evidence  on  the  part  of  the  plaintiff.  The 
fullowins  is  a  copy  of  it: 

"To  Schuyler  Van  FJensselaer:  As  Mr. 
Charles  S.  liinchnian  refuses  to  fulfill  his 
contract  with  Dr.  IJncoln  to  iiunhasecer- 
tnin  securities  delivered  to  you  on  the 
eighth  ilay  of  .July,  IS'^'J,  for  Mr.  Ilinch- 
nmn,  I  hereby  demand  the  immediate  re- 
turn of  the  Hecurities  to  lue,  to-wit,  cer- 
tificates for — 
2>i,40U  shares  of  theStormontCo.'sstock, 

or  its  equivalent. 
24,300        "  "       San     liruno     Mining 

Co.'h  stock. 
SOO       "  "       Ensle   .Silver    Minins 

Co.'s  stock. 
,500       "  "       Hiteliold  Quartz  Mill- 

ing Co.'s  stock. 
1,.SU)        "  "       Star     Grove      .silver 

Mining  Co.V  stock. 
4(1,410        "  "       Meiilo     Gold    tjunrtz 

Co.'h  stock. 
600       "  "       Satemo   Gold  Quartz 

Co.'s  stock. 
100       "  "       N.  Y.  &  Sen   lieach  R. 

K.  Co.'s  stock. 
^O.-noo   in    first   morti;hge   bonds   of   the 

battle  .Mountain  &  Lewis  R.  R.  Co. 
"Dated  New  York.  November  IG,  1.S.S2. 
"Yours,  etc.,  Rufus  P.  Lincoln. 

"By  M.  \V   Tyler.  Atty." 

The  reply  to  it  by  Van  Rensselaer,  as 
proven,  is  as  follows: 

"New  York.  November  'JO,  ISSl'. 

"  Dr.  R.  I'.  Lincoln— Sir:  In  answer  to 
the  demand  matle  upon  me  through  .Mr. 
M.  W.  Tyler,  I  beg  to  say  that  I  hold  the 
securities  mentioned  therein  on  behalf  of 
yourself  and  Mr.  (,'.  S.  Hinchman.  and  I 
have  no  interest  In  or  claim  upon  tlieni 
personally,  i  have  been  notiileil  by  Mr. 
Hiuchmiin  not  to  deliver  them  to  you.  and 
for  that  reason  shall  not  be  aiile  to  accede 
to  yourdemand.  Any  arrangement  agreed 
to  by  yourself  and  Mr.  Hinchman  shall 
hove  my  prompt  aciiiiicscense. 

"I  am,  etc.,  S.  Van  Rensselaer. 

"Per  Nash  &  Kingsford.  His  Attys." 

Nothing  further  occurred  until  the  bring- 
ing of  this  suit  on  Novemliei-  L',"!.  ISSL".  It 
is  conceded  by  the  counsel  for  the  plain- 
tiff that  the  delivery  of  the  securities  in 
((uestion  by  the  plaintiff  to  Van  Rensse- 1 
laer  was  according   tu   the  terms   of   the! 


rpceijit  taken  from  him  at  the  time,  and 
of  itself  was  not  sulhcicnt  evidence  of  u 
receipt  and  acceptance  l)y  the  ilefe:,dunt 
tij  sati.ify  the  stalute  "of  frauds.  The 
juryweieso  instructed  liy  the  court.  In 
speaking  of  it  in  his  charge,  the  judge 
said.  "You  will  recollect  that  it  recites 
that  the  property  was  to  lie  delivered  to 
.\lr.  Hinchman  (I  will  situply  state  the 
language  in  substance)  '  when  he  had  per- 
formed his  contract  with  .\lr.  Lincoln;'  in 
other  words,  it  nttixheil  a  condition.  If 
you  litid  upcui  the  cvidenee  that  Hiat  was 
all  there  was  of  this  transaction.  I  think 
it  my  duty  to  sav,  as  matter  of  law,  that 
there  was  not  such  delivery  as  would 
take  the  case  out  of  the  statute,  because, 
if  that  were  true,  if  he  simply  delivered  the 
stock  to  .Mr.  Van  Rensselaer,  to  be  deliv- 
ered to  Mr.  Hinchinnn.  upon  tlie  payment 
of  the  Slim  by  .Mr.  Hinchiiian.  it  would 
not  be  a  receipt  and  accept.ini-e  l)yhlm; 
the  possession  would  not  b,-  in  him;  he 
could  e.xercise  no  dominion  over  it  until 
he  had  performed  the  act  which  it  was 
necessary  for  him  to  perform  in  order  to 
olitain  the  title.  To  i)ut  it  more  plainly, 
perhaps  the  plaintiff  would  have  in  that 
event  maile  .Mr.  \'an  Rensseiaer  his  agent, 
as  well  as  the  agent  of  the  defendant." 
The  position  of  tlie  plaintiff's  counsel  on 
this  part  of  the  case  is  stated  by  hiin  in  i\ 
printed  brief,  as  folhjws:  "That  receipt 
was  put  in  evidence,  not  as  conclusive  of 
a  delivery  to  Hinchman.  but  as  a  fact  to 
be  taken  into  considtration,  after  the  jury 
had  de'ermiiied  the  (lucstioii  of  delend- 
aiit's  capacity,  in  connection  with  hie  ad- 
mission that  lie  hud  given  Van  Rensselaer 
some  authority  in  the  premises;  his  ad- 
mission to  Tyler,  after  he  saw  the  receipt, 
that  the  deliver.v  to  Van  Rensselaer  was 
'  all  right ;' his  admission  at  Long  Reach 
that  lie  had  the  securities,  and  his  direc- 
tion to  Van  Rensselaer,  on  .August  ".Mth, 
not  to  surrender  any  of  the  Hccuri'les.  If 
the  jury  should  find,  as  it  actually  iliU 
find,  that  Hinchman  was  acting  in  his 
indiviiliial  capacity,  and  that  his  claim  of 
a  representative  capacity,  first  intl- 
irated  in  his  letter  of  July  L'Jd,  was  an  aft- 
erthought and  false,  then  the  authority 
given  liy  him  to  Van  Rensselaer  was  not 
the  limited  authority  he  said  it  was, 
and  in  view  of  the  admission  to  Tyler 
that  the  delivery  was  •  all  right.' the  ad- 
mission at  Long  Reach  of  possession,  and 
the  subsciiuent  assertion  of  dominion 
over  tiie  securities,  it  was  a  fair  inference 
for  the  jury  that  Van  Rensselaer's  author- 
ity was  a  general  one  to  reieive  thesj-cu- 
rities  for  Hinchman.  If  the  jury  should  so 
find,  tlii'ii,  under  the  terms  of  the  rivcipt, 
the  delivery  to  Van  Rensselaer  was  a  de- 
livery to  Hinchinnn,  and  an  acceptance  by 
liim,"sullicient  to  satisfy  the  statute;  for 
nothing  remained  but  for  him  to  pay  the 
purchase  price. " 

In  dealing  with  the  queotlon  arising  on 
this  record,  we  keep  in  view  the  general 
rule  that  it  is  a  question  for  the  jury 
whether,  under  nil  the  circumstanccH.  the 
acts  which  the  buy  er  does  or  forben  rs  to 
do  amount  to  a  re<-elpt  and  acceptance, 
within  tlie  terms  of  the  statute  of  frauds. 
Hushcl  v.  Wheeler,  l."i  Q.  U.  442;  Morton 
v.  Tibbett,  Itl.  42S;    Uorrowscale    v.    Bos- 


^■.)^ 


IIINCIIMAN   0.  LINCOLN. 


worth, ',)'.)  Muss.  3SI  ;  Wartinan  v.  Breed, 
117  Mass.  IS.  lUit  where  the  tiiftB  ill  rela- 
tion to  n  cun tract  of  sale  allefied  to  lie 
within  the  statute  of  frauds  are  not  in 
dispute,  it  belons-i  to  the  court  to  deter- 
mine tlieir  Icfjal  effect.  Sliepherd  v.  Pres- 
Hey,  ;!l'  N.  H.  .')(>.  And  so  it  is  for  tlie  court 
to  witlihold  tlie  facts  from  tliejui.v  when 
they  are  not  such  as  can  in  law  warrant 
finding;'  an  acceptance;  and  this  includes 
cases  where,  tliousli  the  court  niinlit  ad- 
mit tliat  there  was  a  scintilla  of  evidence 
tending:  to  show  an  acceptance,  tliey 
would  still  feel  hound  to  set  aside  a  ver- 
dict finding  an  acceptance  on  that  evi- 
eiioe.  Hrowne,  St.  Frauds,  §  'S'2\  ;  Uenny 
V.  Williams, 5  Allen, fi;  Howard  v.  Borden, 
13  Allen,  299;  Biukhain  v.  Mattox,  5H  N. 
H.  G04. 

In  order  to  take  the  contract  out  of  the 
operation  of  the  stat\ite,  it  was  said  hy 
the  New  York  court  of  appeals,  in  Marsh 
V.  Rouse,  44  N.  V.  CV,i,  that  there  must  he 
"acts  t>f  such  a  character  as  to  unequivo- 
cally place  the  property  within  the  power 
and  under  the  exclusive  dominion  of  the 
buyer  as  absolute  owner,  discharged  of 
all  lien  for  the  price."  This  is  adopted  in 
the  text  of  Benj.  Sales,  (Bennett's  4th 
Amer.  Ed.)  §  179,  as  the  lan(iua,.ie  of  the 
decisions  in  America.  In  Shindler  v. 
Houat(jn,l  N.  Y.  2(51,  49  Anier.  Dec.  810, 
Gardiner,  J.,  adopts  the  lannnafie  of  tlie 
court  in  Phillips  v.  BristoUi,  2  I'-arn.  &  ('. 
.'ill,  "that,  to  satisfy  the  statute,  there 
must  he  a  delivery  by  the  vendor,  with  an 
intention  of  vesting  theright  of  possession 
in  the  vendee,  and  there  must  be  an  ac- 
tual accceptance  by  the  latter,  with  the 
intent  of  taUinj;'  possession  as  owner;" 
and  adds:  "This,  I  apprehend,  is  the  cor- 
rect rule,  and  it  is  obvious  that  itcan  only 
be  satisfied  by  something  done  sul)sequent 
to  the  sale  unequivocally  indicating  tlie 
mutual  intentions  of  the  parties.  Mere 
words  are  not  sufficient.  Uailey  v.  Og- 
den,  3  Johns.  421.  *  »  *  In  a  word,  the 
statute  of  fraudulent  conveyances  and 
contracts  pronounces  these  agreements, 
when  made,  void,  unless  the  buyer  should 
'accept  and  receive  some  part  of  the 
goods.'  The  language  is  unequivocal, and 
demands  the  action  of  both  parties,  for 
acceptance  implies  delivery,  and  there  can 
be  no  complete  delivery  without  accept- 
ance." In  the  same  case.  Wright,  J.,  said  : 
"The  acta  of  the  parties  must  be  (jf  such 
a  character  as  to  unequivocall.v  place  the 
property  within  the  power  and  under  the 
exclusive  dominion  of  the  buyer.  This  is 
the  doctrine  of  those  cases  that  have  car- 
ried the  principle  of  constructive  deljvery 
to  the  utm(  st  limit.  »  »  »  Where  the 
acts  of  the  buyer  are  equivocal,  and  do 
not  lead  irresistibly  to  the  conclusion  that 
there  has  been  a  transfer  ami  acceptance 
of  the  possession,  the  cases  qualify  the 
inferences  to  be  drawn  from  tliem,  and 
hold  the  contract  to  be  within  the  stat- 
ute. »  *  »  I  think  I  may  affirm  with 
safety  that  the  doctrine  is  now  clearly 
settled  that  there  must  not  only  be  a  de- 
livery by  the  seller,  but  an  ultimate  ac- 
ceptance of  the  possession  of  tlie  goods 
liy  the  liuyer,  and  that  this  delivery  and 
acceptance  can  only  be  evinced  by  un- 
equivocal acts   independent   of   the   proof 


of  the  contract."  This  case  is  regarded 
as  a  leading  authority  on  the  subject  In 
the  state  of  New  Y'ork,  and  has  lieen  uni- 
formly followed  there,  and  is  recognized 
and  supported  by  the  decisions  of  the 
highest  courts  in  many  other  states,  as 
will  appear  from  the  note  to  the  case  as 
reported  in  49  Amer.  Dec.  IJIO,  where  a 
large  numbt-r  of  them  are  collected.  So, 
in  Kemick  v.  Sandford,  l-'O  Mass.  :W9,  31G, 
it  was  said  by  Devens,  J.,  speaking  of  the 
distinction  between  an  acceptance  which 
would  satisfy  the  statute,  and  an  accept- 
ance which  would  show  that  the  goods 
corresponded  with  the  warranty  of  the 
contract,  that,  "if  the  tmyer  accepts  the 
goods  as  those  which  he  purchased,  he 
may  afterwards  reject  them  if  they  were 
not  what  they  were  warranted  to  be;  l)ut 
the  statute  is  satisfied.  But  wliile  such  an 
acceptance  satisfies  the  statute,  in  order 
to  have  that  effect,  it  must  be  by  some 
nne(iuivocal  act  done  on  the  part  of  the 
buyer  with  intent  to  take  possession  of 
the  goods  as  owner.  Thesaleiuust  be  per- 
fected; and  this  is  to  be  shown,  not  by 
proof  of  a  change  of  possession  only,  but 
of  such  change  with  such  intent.  When  it 
is  thus  definitely  established  that  the  re- 
lation of  vendor  and  vendee  exists,  writ- 
ten evidence  of  the  contract  is  dispensed 
with;  although  the  buyer,  when  the  sale 
is  with  warranty,  may  still  retain  his 
right  to  reject  the  goods  if  they  do  not 
correspond  with  the  warranty.  *  »  * 
That  there  has  been  an  acceptance  of  this 
character,  or  that  the  buyer  has  conduct- 
ed himself  in  regard  to  the  goods  as 
owner  *  *  *  is  to  be  proved  by  the 
partj'  setting  up  the  contract." 

Mr.  Benjamin,  in  his  treatise  on  Sales, 
§  l!S7,  says:  "It  will  already  have  been 
perceived  that  in  many  of  the  cases  the 
tsst  for  determining  whether  there  has 
been  an  actual  receipt  by  the  purchaser 
has  been  to  inquire  whether  the  vendor 
has  lost  his  lien.  Heceipt  implies  delivery, 
and  it  is  plain  that,  so  long  as  vendor 
has  not  delivered,  there  can  be  no  actual 
receipt  by  vendee.  The  subject  was 
idaced  in  a  very  clear  light  by  Holroyd, 
J.,  in  the  decision  in  Baldey  v.  Parker,  2 
Marn.  &  C.  o7:  'Upon  a  sale  of  specific 
goods  for  a  specific  price  by  parting  with 
the  possession,  the  seller  parts  with  his 
lien.  The  statute  contemplaten  such  a 
parting  with  the  possession,  and  there- 
fore, as  long  as  the  seller  preserves  his 
(•ontrol  over  the  goods  so  as  to  retain  his 
lien,  he  prevents  the  vendee  from  accept- 
ing and  receiving  them  as  his  own,  within 
the  meaning  of  the  statute.'  No  excep- 
tion is  known  in  the  whole  series  of  de- 
cisions to  the  proposition  here  announced, 
and  it  is  safe  to  assume  as  a  general  rule 
that,  whenever  no  fact  has  been  proven 
showing  an  abandonment  by  the  vendor 
of  his  lien,  no  actual  receipt  by  the  pur- 
chaser has  taken  place.  This  has  been 
as  strongly  insisted  upon  in  the  latest  as 
in  the  earliest  cases.  The  principal  deci- 
sions to  this  effect  are  referred  to  in  the 
note."  In  accordance  with  this,  the  rule 
is  stated  in  Browne,  St.  Frauds,  §  317a, 
as  follows:  "Where,  by  the  terms  of  the 
contract,  the  sale  is  to  lie  for  cash,  or  any 
other   conditi(ju   precedent  to  tlie   buyer's 


HINCIIMAN  V.  LIXCOhX. 


431 


acquiring  title  in  the  goods  he  inipoHed,  or  ] 
the  KoodH  be  at  tlic  timo  of  the  alleKed  re- 
ceipt not  litted  for  delivery  according  to 
the  contract,  or  auything  leiiiaiii  to  he 
done  by  the  seller  to  perfect  the  delivery, 
Hu<'h  tact  will  be  Konerully  conclusive  that 
there  was  no  receipt  by  the  buyer.  Thei'c 
must  be  lirst  u  delivery  by  the  seller,  with 
intent  to  Kive  possession  of  the  goods  to 
the  buyer." 

It  is  clear,  and,  us  wo  have  seen,  is  con- 
ceded, that  the  original  delivery  hy  the 
plaintiff  to  Van  Uerisselaer  of  the  securi- 
ties, according  to  the  terms  of  the  receipt 
taken  at  the  time,  was  not  a  delivery  to 
the  defendant  in  the  sense  of  the  rule  es- 
tablished by  the  authorities;  and  that 
ionse(|uently  there  was  not,  and  could  not 
have  bi'cn,  at  that  time,  a  receipt  and  ac- 
ceptance of  them  by  the  defendant  to  sat- 
isfy the  statute  of  frauds.  How  far  can 
it  be  cltilmed  that  that  inchoate  and  in- 
complete delivery  was  made  perfect  by 
any  subsequent  act  or  conduct  of  the  par- 
ties? The  lirst  circumstance  relied  on  liy 
the  plaintiff  as  material  to  that  point  is 
that,  shortly  after  the  receipt  was  given, 
the  defendant  was  informed  of  it,  and 
made  no  objection  to  it.  Hut  certainly 
this  is  insi;^niticant ;  it  added  nothing  to 
the  transaction  stated  in  the  receipt  tliat 
the  defeiiilaiit  assented  to  it.  That  as- 
.sent  was  simply  that  the  securities  had 
been  delivered  to  Van  Itensselaer,  to  be 
delivered  to  him  when  paid  for.  It  did 
not  alter  the  implied  contract  between  Van 
Hensselaer  and  tiie  plaintiff,  arising  upon 
the  terms  of  tlie  receipt,  that  the  subject 
of  the  sale  should  not  be  delivered  to  the 
defendant  until  he  had  paid  the  agreed 
pr'ce.  The  ne.\t  circums'ance  relied  upon 
is  the  conversation  testilied  to  l)y  Tyler  | 
as  having  tal<en  place  on  .luly  L'Oth  be- ' 
tween  him  and  the  defendant.  In  that 
conversation,  Tyler  testilies  that  he  said  . 
to  the  defendant  "that  I  supposed  he 
l<new  we  had'delivered  the  securities — the 
IJothwell  securities — to  A'an  H^nss-elaer  as 
he  had  <lirecteil;  and  he  said,  '  Yes,  that 
was  all  right.' "  Here,  certaiidy,  nothing 
was  added  to  the  transaction.  Hoth 
these  circumstances  are  also  fnll.v  met  by 
the  well-established  rule  that  mere  «ords 
are  not  snlhcient  to  constitute  n  delivery 
and  acceptance  which  will  take  a  verbal 
contract  of  sale  out  of  the  statute  of 
frauds.     Shindler  v.  Houston,  ubi  supra. 

riie  ne.xt  item  of  evidence  in  support  of 
the  plain  tiffs  contcTition  is  the  conversa- 
tion on  August  1,  ISSL',  at  Long  Beach,  be-  [ 
tween  the  defendant  and  the  plaintiff,  in  l 
which  the  defendant,  introducing  Meyer 
io  tlie  plaintiff,  said  :  "Tliisis  Doctor  Lin- j 
cola,  fi-om  whom  I  have  the  liothwell  se- 
curities." This  declaration  of  the  defend- 
ant is  treated  in  the  argument  as  an  ad- 
mission liy  hijn  ilistinctly  (d  tlie  fact  that 
he  had  at  that  time  possession  of  the  se- 
curities in  question,  which  he  coulil  only 
have  by  a  deliver.v  from  \'an  ISensselaer, 
either  actual  or  constructive.  This  con- 
struction of  the  statement,  however,  in 
our  opinion,  is  entirely  inadmissible.  The 
context  plainly  shows  such  not  to  have 
been  its  meaning,  tor,  as  appears  by  the 
testimony  of  the  plaintiff  relating  it.  the 
conversation  immediately  turned    to   the 


controversy  between  the  partlefi  ns  to 
whether  the  (h'lendant  had  been  negotiat- 
ing for  the  sei'uritics  In  his  Imllvldual 
capacity,  or  as  trustee  for  the  Stormont 
Silver  .Mining  Company.  The  expreHsion 
testilieil  to  cannot  fairly  be  extended  be- 
yond a  casual  reference  to  the  trnnHuc- 
tion  as  it  had  taken  place,  anil  as  it  then 
stood  u|)on  theteinisof  the  Van  Kensseluer 
receipt.  There  is  nothing  whatever  in  the 
conversatioti  to  justify  tlie  inference  that 
there  had  been  a  subsequent  delivery  by 
Van  Itensselaer  to  tlie  defendant,  whereby 
the  possession  of  the  securities  had  been 
changed,  or  whereby  the  control  and 
dominion  over  them  had  been  given  to 
the  defen<lant  by  Van  Itensselaer, contrary 
totheleims  of  his  agreement  with  the 
plaintiff  as  contained  In  the  receipt.  .\iid 
Nuch  was  and  must  have  been  the  under- 
standing of  the  plaintiff  hiins>'ir.  for  sub- 
sequently, on  the  si.xteenth  of  Xovembi'r, 
he  made  the  written  ilemand  upon  Van 
Itensselaer  for  the  immediate  return  of  the 
si-enrities  to  him,  on  the  ground  that  up 
to  that  time  the  defendant  had  refused  to 
fuinil  his  contract  for  their  iiurchasc. 
This  is  certainly  an  unequivocal  act  on 
the  part  of  the  plaintiff  entirely  inconsist- 
ent with  the  assertion  that  there  bad 
been,  prior  to  that  time,  any  delivery  by 
him  or  by  his  authority  to  the  defendant 
of  the  suliject  of  the  alleged  sale.  Its  legal 
effect  goes  lieyond  that;  It  was  a  distinct 
rescission  of  the  contract  of  sale;  it  was 
a  notice  to  Van  Rensselaer  not  to  deliver 
to  the  defendant  thereafter,  even  if  lie 
should  offer  to  complete  the  contract  by 
payment  of  the  consideration  ;  it  put  on 
end,  by  its  own  terms,  to  the  n-lation  be- 
tween the  parties  of  vendor  and  vendee;  It 
made  it  unlawful  in  Van  Itensselaer  there- 
after to  deal  with  the  securities,  except  by 
a  return  of  them  to  the  plaintiff  as  tbeir 
owner.  The  refusal  of  Van  Itensselaer  to 
comply  with  the  terms  of  thedeniand  sub- 
jecteil  him  to  an  immediate  action  by  the 
plaintiff  for  their  recovery  specllically.  If 
he  could  reach  them  by  process,  or  other- 
wise, for  damages  for  their  conversion. 
This  certainly  is  conclusive  of  tlie  (|nestion 
of  a  prior  delivery  to  the  defendant,  and  a 
receipt  and  acceiitance  by  him.  Taylor 
V.  Wakelield,  (J  Kl.  &  lU.  TC..".;  lienj.  Sales, 
§  171. 

To  meet  this  view,  however,  the  letter 
of  the  definilant  to  Van  Kensselaer  of  Au- 
gust LMtli  is  relied  on  as  evidence  of  a  re- 
ceipt and  acceptance  by  the  defendant  at 
that  lime,  being,  ns  it  li^  argued,  the  ex- 
ercise of  control  and  dominion  over  the 
securities  by  the  defendant  as  owner. 
That  letter.  It  will  be  observed,  is  ad- 
dressed to  Van  Itensselaer  as  secretary 
and  treasurer  of  the  Stormont  Silver  .Min- 
ing Company  by  the  defendant,  signing 
himself  president  and  trustee  of  the  same. 
It  declares  that  the  plaintiff  had  seen  tit 
to  disavow  the  umlerstanding  and  agree- 
ment bv  which,  as  claimed  by  the  tlefend- 
ant,  heliiid  obtained  control  of  the  secu- 
rities in  question  which  had  been  left  in 
Van  Kensselaer's  hands;  that,  after  con- 
ference with  a  majority  of  the  trustees  of 
the  company,  he  had  Ihhmi  Instructeil  to 
notlfv  Van  Kensselaer  to  retain  posses- 
sion "of   them  until  a  court    of  competent 


432 


IIINCHMAN  C.LINCOLN. 


jurisdiction  Khoiild  direct  him  wliat  to  do 
with  them  ;  nddinR, "  Iclaiiiiiii«,  as  n  truH- 
tee,  for  the  benefit  of  Storiiiont  treasury, 
an  equitable  and  bona  fide  interest  there- 
in." Clearly,  tliere  is  nothing  in  the  send- 
ing of  this  dornmeiit.  or  in  its  contents, 
which  can  have  the  effect  contended  for, 
whether  considered  alone,  or  in  connec- 
tion with  the  subsequent  refusal  of  Van 
Rensselaer  to  return  the  securities  to  the 
plaintiff,  in  pursuance  of  his  demand. 
Taken  together,  they  do  not  constitute 
either  the  assertion  or  exercise  of  any 
right  in  respect  to  the  securities  under  anj- 
contract  of  sale  bc^tween  the  plaintiff  and 
the  defendant  as  individuals.  It  is  quite 
true,  and  the  authorities  so  declare,  that 
the  receipt  and  acceptance  l)y  the  vendee 
under  a  verbal  agreement,  otherwise  void 
by  the  statute  of  frauds,  may  be  complete, 
although  the  terms  of  the  contract  are 
in  disi>ute.  Keceiiit  and  acceptance  by 
some  unequivocal  act,  sufficiently  i)roven 
to  have  tal<en  place  under  some  contract 
of  sale,  is  sufficient  to  take  the  case  out 
of  the  prohibition  of  the  statute,  leaving 
the  jury  to  ascertain  and  find  from  the 
testimony  wliat  terms  of  sale  were  ac- 
tually agreed  on.  Marsh  v.  Hyde,  .3  'iray, 
331;  Townsend  v.  Hargraves,  US  Mass. 
32.5;  Uenj.  .Sales,  §  170.  I?ut,  as  was  said 
by  Williams,  .1.,  in  Tomkinson  v.  Staight, 
17  C.  B.  GOT,  the  acceptance  by  the  defend- 
ant must  be  in  the  quality  of  vendee. 
"The  statute  does  not  mean  that  the 
thing  which  is  to  dispense  with  the  writ- 
ing is  to  take  the  place  of  all  the  terms  of 
the  contract,  but  that  the  acceptance  is 
to  establish  the  broad  fact  of  the  relation 
of  vendor  and  vendee."  The  act  or  acts 
relied  on  as  constituting  a  receipt  and 
acceptance,  to  satisfy  the  statute,  must 
be  such  as  definitely  establish  that  the 
relation  of  vendor  and  vendee  exists. 
Remick  v.  SandfonJ,  120  Mass.  30'J. 

Jn  the  present  case  the  notice  of  tlie  de- 
fendant, as  president  and  trustee  of  the 
Stormont  (^ompany,  to  Van  Itensselaer, 
to  retain  possession  of  the  securities,  and 
Van  Rensselaer's  refusal  to  return  the  se- 
curities to  the  plaintiff  on  his  demand  in 
consecjuence  thereof,  certainly  are  not 
facts  which  tend  to  establish  the  existing 
relation   of   vendor    and   vendee   between 


the  plaintiff  and  the  defendant.  The  de- 
fendant in  his  notice  makes  no  claim  as 
Kucl) ;  and  certainly  no  assent  on  the  part 
of  the  plaintiff  to  his  exercise  of  any  such 
dominion  is  shown.  It  is  clear  beyond 
all  controversy,  so  fur  as  this  record 
shows,  that  the  plaintiff  had  never  con- 
sented that  Van  Rensselaer  should  deliver 
the  securities  to  the  defendant  except 
upon  payment  of  the  price,  nor  is  there  a 
particle  of  proof  that  Van  licnsselacr  has 
ever  done  so. 

It  is  further  and  finally  nrgeil,  however, 
by  his  connsel,  that  it  was  competent  for 
the  plaintiff  to  waive  the  condition  of  a 
previous  payment  of  the  consideration, 
and  to  authorize  Van  Rensselaertorleliver 
the  securities  to  the  defendant  without 
performance  of  the  contract  on  the  part 
of  the  latter,  and  that  the  bringing  of  the 
present  action  was  such  a  waiver.  It,  in 
point  of  fact.  Van  Rensselaer  had  trans- 
ferred the  manual  possession  of  tlie  securi- 
ties to  the  defendant,  or  if,  contrary  to 
the  terms  of  his  original  receipt,  he  had 
agreed  with  the  defendant  to  hold  the 
securities  subject  to  his  order  as  his  agent, 
free  from  the  conditions  of  the  purchase, 
and  as  his  absolute  property,  the  plain- 
tiff's assent  to  this  new  arrangement 
might  be  well  implied  from  his  bringing 
an  action  against  the  defendant  to  re- 
cover the  consideration.  But  the  preni- 
ise.s  on  which  this  conclusion  rests  are  not 
to  be  found  in  the  present  case.  There 
was  no  transfer  of  possession  from  Van 
Rensselaer  to  the  defendant,  nor  has  there 
been  any  change  in  the  relation  of  Van 
Rensselaer  to  his  possession  ot  the  securi- 
ties, whereby  he  has  agreed,  with  the  con- 
sent of  the  defendant,  to  hold  tliem  as 
agent  for  the  latter  as  vendee  under  any 
contract  of  sale  with  the  plaintiff. 

On  the  whole,  we  are  well  satisfied  that 
there  was  no  evidence  of  a  receipt  and 
acceptance  of  the  securities  in  question  by 
the  defendant  to  authorize  a  recovery 
against  him  upon  the  alleged  contract  of 
.sale.  It  was  error  in  the  circuit  court  to 
refuse  to  charge  the  jury  to  that  effect,  as 
requested  by  the  counsel  for  the  defend- 
ant. For  that  error  the  judgment  is  re- 
versed, and  the  cause  remanded,  with  di- 
rections to  grant  a  new  trial. 


iiouTON  V.  liurn.N  rf)x. 


435 


IIOKTUX  V.  BUFl-'INTON. 

(105  Mass.  399.) 

Supremo  Judicial   Court  of  Massachusetts. 
Bristol.    Oct.  Term,  1870. 

I{('|)ioviii  of  n  wujion.  .JarviH  I{.  Ilortiin, 
the  orifiiiiiil  owner  of  liie  waKoii,  sold  niid 
(Iclivcri'il  it  to  Chiirlfs  A.  H^jrton,  who 
Hold  it  to  the  phiintifr.  While  in  the  plain- 
tiff'H  hfinilK,  it  WUH  nltiiclied  \>y  the  de- 
fendant, a  depnty  wheriff,  on  a  writaK"iiiwt 
.larvis  I!.  Ilorton.  There  wuh  evidenee 
that  the  sale  by  JarviH  I!.  Korton  to 
Charles  A.  Ilorton  waH  on  a  .Sunday.  The 
defendant  reiiueHted  thejiidfreto  inMtruet 
the  jury  that,  "if  Jarvis  H.  Hortoii  nnder- 
took  to  sell  the  property  to  t'harl'.'H  A. 
Ilorton  on  Snnday,  then  Charles  A.  Ilor- 
ton ai(|nireil  no  title  to  it  l)y  that  tranH- 
artion,  anil  could  inii)art  no  title  to  the 
plaintiff,  when  he  undertook  to  sell  it  to 
liiin.  which  *lie  latter  coulil  set  up  aifaiast 
an  attaehin^  creditor  of  Jarvis  I!.  Ilor- 
ton." Thejudtfc  refnsi'd  the  instrnclion 
prayed  for,  and  instructed  that  "if  t'liarles 
.\.  Horton  purchased  the  wafj;«n  on  Sun- 
day, and  sold  it  to  the  plaintiff  witl.out 
informinij;  him  that  it  was  purchrised  on 
Sun<lay,  and  the  plaintiff  was  ignorant  of 
that  fact  when  he  l>ou};ht  the  wuk"".  "'•'' 
in  no  way  particijjated  in  the  transaction 
on  Sunday,  then  he  wouhl  nccjuire  a  title 
to  the  wa;;on  by  thi;  sale  from  Charles  A. 
Ilorton  which  he  conld  set  up  against  an 
attachinjr  creditor  of  Jarvis  B.  Ilorton." 
The  jury  found  for  ])laintiff,  and  the  de- 
fendant alleged  exceptions. 

C.  A.  Iteed.  for  plaintiff.  G.  .Mar.«iton 
and  O.  E.  Williams,  for  defendant. 

AMES,  J.  It  is  well  settled  that  con- 
tracts made  upon  the  Lord's  day  are  ille- 
gal and  cannot  be  enforced.     It  is   e(iually 


well  settled,  however,  that  after  bupIi  a 
contract  lias  been  executeil  and  carried  in- 
to full  effect,  the  law  will  not  aid  a  parly, 
who  has  paid  money  ordeliven-il  property 
in  pursnance  of  its  terms,  to  reclaim  what 
he  has  so  parted  with.  The  policy  of  the 
law  is  to  leave  the  parlies  in  nil  such 
cases  without  remedy  against  each  other. 
Thedefence  of  Illegality  is  allowed."  not  as 
a  iirotection  to  the  defendant,  but  as  a 
•  Usability  in  the  plaintiff."  Myers  v. 
.Meinrath,  101  .Mass.  ;!(;(;. 

The  case  linds  that  the  wniton  In  dlH- 
I)ute.  ulthon«h  it  may  be  true  that  it 
was  sold  by  .Jarvis  I!,  lloiton  on  the 
Lord's  day,  was  delivered  to  his  brother, 
Charles  A.  Horton,  was  rtubse(|uently  sold 
by  the  latter  to  trie  plaintiff,  and  was  In 
the  actual  possession  and  use  of  the  plain- 
tiff at  the  time  of  the  attachment  by  the 
defendant.  In  the  absence  of  all  evidence 
to  the  contrary,  it  may  be  assumeil  that 
the  consiileration  of  the  Hrst  sale  waa 
paid.  Kniler  such  circumstances  it  is  dlffl- 
cult  to  see  how  the  original  vendor,  Jar\  Ir 
1'.  lloitoii,  could  have  reclaimed  it  on  th» 
irroiind  of  any  illegality  in  the  contract  of 
sale.  'I'he  l:tw  would  not  aid  him  to  undo 
what  he  had  done,  lie  could  only  iiD- 
peach  the  .sale  by  showiii);  the  illegality 
of  his  own  act.  which  in  the  case  of  atl 
executcil  and  completed  contract  he  cer- 
tainly cannot  do.  This  disability  on  his 
part  to  reclaim  it  wo\ild  avail  the  party 
lioldiuK  it.  as  n  sullicient  title.  Myerf  v. 
Meinrath,  ubi  supra.  It  hod  ceased  to 
be  the  original  vendor's  property,  or  lia- 
ble fiir  his  debts,  and  therefore  the  attach- 
ment under  which  the  defendant  seeks  to 
justify  was  wrongful.  Kinii  v.  Ureen,  6 
Allen,  VM.  Claridfte  v.  Iloare,  U  Ves.  .".9. 
Waj  V.  Foster,  1  .\llen,  4(is.  Oreun  v.  \Vy- 
nian.  4  Cush.  "ll"J.  .Sanipson  v.  SUaw,  101 
.Mass.  I4.->. 

Exceptions  overruled. 


IIos^rER  c.  wiLsox 


437 


HOSMKR  et  aJ.  v.  WILSON. 

(7  JtiHi.  204.) 
Snprprae  f'iMir(  of  Mirliijjan.    Oct.  17,  1859. 

AsKiimpHit  b.v  John  B.  Wilson  a^aintst 
Itiifiis  llosiiier  and  atiotlier  "for  wor'k  ami 
labour  done,  and  HiTvicfM  rendered,  and 
niati't'ialH  furnished,  hy  jihiintiff  and  liiH 
hervants  for  defendants,  all  at  request  of 
sail!  dcfwndiintH.  "  .Jndnment  for  idaintiff, 
and  defcndiints  brinjj:  error.     Reversed. 

It  ,i|)|irnn'il  (hat  one  of  defendants  had 
called  ;il  iil;iintiff's  foundry,  tiiul  ttierc 
sinned  a  wit  ten  order  for  an  etiRine.  to  be 
paid  for  wlii'n  taken  f)iit  of  the  shop,  and 
that  plaintiffs  clerk  accepted  the  order; 
that  plaintiff  then  proceeded  to  make  such 
enirine,  and  only  stopped  when  he  received 
.■I  li'ller  from  defendant.s  countermandinK 
the  order. 

.lerorne  &  Swift,  for  plaintiffs  in  error. 
Towle,  Hunt  &  Newberry,  for  defendant 
in  error. 

(."HKI.STI.\N(;Y,  J.  Whether  the  writ- 
ten meniorandtiin  sinned  by  the  defenil- 
ants  belciw,  when  taken  in  connection 
with  the  whole  transaction  between  the 
parties,  was  iimlerstood  by  all  of  them  as 
a  contract,  minht  have  been  a  fair  ques- 
tion of  fact  for  the  jury.  Hut  ndmittinn 
the  contract  to  have  been  proved  in  all  re- 
Kpects  as  clainuMl  by  the  plaint  iff.  and  that 
defendants  lielow  wrongfully  counter- 
manded the  order  for  the  ennine,  after  the 
plaintiff  had.  in  nood  faith,  made  most  of 
the  castinjis,  and  done  a  larfz;e  part  of  the 
work;  the  lirsf  (|ucstion  which  arises  is, 
whether  th("  pinintiff  was  entitled  to  re- 
cover upon  the  common  counts  for  work 
and  lal)or,  as  upon  a  (pinatum  meruit? 
Ah  to  thematerials  it  is  admitted  he  could 
not,  though  contained  in  the  same  count; 
as  they  still  belonji'ed  to  i)lHintiff,  and 
were  never  delivered  to  defendants. 

In  the  case  of  a  conti'act  for  a  certain 
omoMMtof  lal)or,orfor  work  for  a  specified 
period  —  when  the  laboi-  is  to  be  perfornsed 
on  themiitcriaU  or  i)roperty,  or  in  carrying 
on  the  business,  of  llie  defendant,  or  when 
the  defendant  has  otherwise  accepted  or 
appropriated  the  labor  performed,  if  thcde- 
(endaiit  prevent  the  plaintiff  from  per- 
forniiuy:  the  whole,  or  wrongfully  ilis- 
tharne  him  from  his  employ  lucnt.  or  order 
him  to  stop  the  work,  or  refuse  to  pay 
as  he  hns  agreed  (when  pa.vments  become 
due  In  the  progress  of  the  work),  or  disa- 
ble himself  from  performitijj;,  or  unquali- 
fiedly refuse  to  perforin  his  part  of  the 
contract,  the  iilaintiff  may,  without  fur- 
ther performance,  elect  to  sue  upon  the 
contract  and  recover  damanes  for  the 
breach,  or  treat  the  contract  as  at  an 
end,  nnd  sue  in  nener.'il  assumpsit  for  the 
work  and  labor  act  uallv  iierforiued:  Hall 
V.  ItupU'v.  HI  Itarr.  l.':!l  :  Moulton  v.  Trask, 
9  Mete,  .■iT'.l;  Derby  v.  .lohrson, 'Jl  Vt..:.'!; 
Caiiiida  V.  ("jiiuidn,  (1  t'usli.,  15;  Draper  v. 
Hnnd(>lph,4  Iliirrinnton,  454;  Webster  v. 
Kiifield.  5  (iilni..  L'ilS. 

.\nd  in  snchcascs  he  may,  it  would  seem, 
un<ler  the  common  itidebitatus  count,  re- 
cover the  contract  pric,  where  the  case  is 
such  that  the  lalxir  done  can  be  measured 
or  apportioned    by  the  contract    rate;  or 


I  whether  It  can  be  ho  apportioned  or  not, 
lie  may  under  the  quantum  meruit  recover 
what  it  is  reasonably  worth.  Hut  in  all 
such  cases,  the  [daintiff,  hnunc  appro- 
priated anil  rcceiveil  the  Iteiietit  of  the 
labor  (or,  what  is  erjuivnlent.  having  In- 
tluceil  the  plaintiff  to  e.\pend  his  labor  for 
j  him,  an<!,  if  properly  [lerformed  acconJiuK 
to  nis  desii-e,  the  defendant  beiiin  estopped 
to  <leny  the  benefit),  a  dutv  is  iinposeil 
upon  the  defendant  to  pay  for  the  labor 
thus  performed.  This  duty  the  law  en- 
forces under  the  fiction  of  an  implied  con- 
tract, nro'vinn  out  of  the  reception  or  aji- 
pr,.priation  of  the  plaintiff's  labor. 

It  is  therefore  evident,  l.st,  that  in  all 
the  cases  supposed,  an  implied  contract 
wouhl  have  arisen, and  the  plaintiff  niinht 
have  recovered  upon  a  quuntutn  meruit,  if 
no  B|iecinl  contract  had  ever  been  made; 
2d,  that  in  the  like  cases  (where  the  value 
of  the  work  done  could  not,  as  it  probably 
could  not  in  the  case  before  us,  lie  appor- 
tioned l)y  the  contract  price)  the  value  or 
fair  price  of  the  work  done,  woidd  neceH- 
sarily  constitute  the  true  measure  of  dum- 
ancs.  And  in  all  such  cases,  ;ih  first  Hup- 
poseil,  either  the  contract  price,  or  the 
reasonable  worth  of  the  labor  done,  would 
measure  tlie  damages. 

Similar  considerations  and  like  rules 
would,  doulttlcHs.  equally  apply  to  con- 
tracts for  furnishing  materials,  and  forthe 
sale  nnd  delivery  of  pergonal  property, 
wlien,  after  part  of  the  materials  or  prop- 
erty hns  been  received  ami  appropriated 
by,  or  v'ested  in  the  defendiint.  he  has  pre- 
vented the  i)l,iintiff  from  peiforminn,  or 
authorizing  him  to  treat  tlie  contract  as 
at  an  end.  on  any  of  the  grounds  above 
mentioned. 

r.ut  the  case  before  us  stands  upon 
very  different  irrounds.  Mere  the  con- 
ti'act,  as  cliiimed  to  have  been  proved, 
was  in  no  just  sense  a  contract  for  work 
and  lal)or,  nor  could  the  plaintiff,  while 
at  work  upon  the  engine,  be  proi)erly  said 
to  be  enuaned  in  the  business  of  the  de- 
fendants. It  was  substantially  a  contract 
for  the  sale  of  an  engine,  to  be  made  and 
furnished  by  the  )>laintiff,  to  the  defend- 
ants, from  the  shop,  and,  of  course,  from 
the  m.-iterials  of  the  plaliitiff.  The  defend- 
ants had  no  interest  in  the  materials,  nor 
any  concern  with  the  amount  of  the  labor. 
They  were  to  i)ay  a  certain  price  for  the 
engine  when  completeil.  ICniiines,  it  Ir 
true,  are  not  constructed  without  labor; 
the  labor,  therefore,  constitutes  part  of 
the  value  of  the  enjr'n«>.  Itut  this  would 
have  been  equally  true  if  the  contract  in 
this  case  had  been  for  an  enuini'  already 
completed. 

The  lalxir  of  the  plaintiff  was  upon  hia 
own  materials,  to  increase  their  value,  for 
the  purpose  of  effeciiiiK  r.  sale  (o  defend- 
ants when  completed.  No  title  in  any 
part  of  the  n.aterlals  was  to  vest  In  de- 
fendants till  the  whole  should  be  coin- 
Iileted  by  pinintiff. and  delivered  to  defend- 
ants. The  pliiinliif  iniKht  have  sold  any 
of  the  ninterlals.  after  the  work  was  per- 
formed, or  the  whole  engine  when  com- 
pleteil. iit  anytime  liefore  delivery  to,  or 
acceptance  by  defendants. 

Whether,  therefore,  the  labor  actually 
performed    on    these   niateriala,  wbeo    the 


43S 


HOSMEU   V.  WII.SOX. 


defendants  refiiHed  to  go  on  with  the  pon- 
tract,  or  prevented  the  fnither  ptrl'orui- 
aiice,  had  euhaneed  (jr  diminished  the 
value  of  the  mnterialH.  and  liow  uiiicli, 
would  be  a  necessary  (luestion  of  faet,  in 
arriving  at  any  proper  measure  of  dam- 
ages. Tlie  value  of  the  work  and  lahor 
does  not,  therefore,  in  sueh  a  case,  consti- 
tnte  the  proper  criterion  or  measure  of 
damages.  If  the  value  of  the  materials 
has  been  enlianced  bj-  the  labor,  the  plain- 
tiff,still  owning  thematerials,  has  already 
received  compensation  to  the  e.xtent  of 
the  increased  value;  and  to  give  him  dam- 
ages to  the  full  value  of  the  labor,  would 
give  him  n\ore  than  a  coicpensation.  If 
the  value  of  the  materials  has  been  diniiu- 
ished,  the  value  of  the  labor  would  not 
make  the  comptMisatitin  adeciuale  to  the 
loss.  It  would  beonl.vin  the  single  case 
wliere  the  materials  have  neither  been  in- 
creased nor  diminished  liy  the  labor,  that 
the  value  of  the  labor  would  measure  the 
dainage.s.  Such  a  case  euuld  seldom  oc- 
cur, and  whether  it  could  or  not,  it  must 
always  be  a  (piestion  of  fact  in  the  case, 
whether  the  value  of  the  materials  dcjes 
remain  the  same,  or  wiiether  it  has  been 
increased,  or  diminished,  and  to  what  ex- 
tent. 

Again,  as  the  defendants  never  received 
the  engine,  nor  any  of  the  materials,  the 
title  and  possession  still  remained  in  the 
plaintiff,  and  the  defendants  never  having 
received  or  api)ropriateil  the  labor  of  the 
plaintift,  if  the  same  work  had  been  per- 
formed under  the  like  circumstances,  with- 
out any  actual  or  special  contract,  the 
law  would  have  imposed  no  duty  upon 
the  defendants,  and  therefore  implies  no 
contract  on  their  part  to  pay  for  the 
work  done:  ]  t'hit.  PL,  3^1";  Atkinson  v. 
Bell,S  B.&C.,277;  Allen  v..Jarvis,l'U  <,'onn., 
3S. 

The  only  contract,  therefore,  upon  which 
the  plaintiff  can  rely  to  pay  him  for  the 
labor,  is  the  special  contract.  No  duty  is 
imposed  npon  the  defendants  otherwise 
than  by  this.  This  contract,  therefore, 
must  form  the  t)asis  of  the  plain  tiff's  ac- 
tion. He  must  declare  upon  it,  and  claim 
liis  damages  for  the  breach  of  it,  or  for 
being  wrongfull.v  prevented  from  perform- 
ing it.  His  damages  will  then  he  the  ac- 
tual damages  which  he  has  suffered  from 
the  refusal  of  the  defendants  to  accept  the 
articles,  or  in  consequence  of  being  pre- 
vented from  its  performance;  and  these 
damages  may  be  more  or  less  than  the 
value  of  the  labor.  This  case,  therefore, 
in  this  respect,  comes  directly  within  the 
principle  recognized  in  the  case  of  Atkin- 
son V.  P.ell,  above  cited,  and  in  Allen  v. 
Jarvis,  1!0  Conn.,  3S  (a  well  reasoned  case, 
which  we  entirely  approve  I.  And  see 
Moody  v.  Brown,  34  Me.,  107,  where  the 
same  principle  is  recognized. 

But  it  was  claimed  by  plaintiff's  counsel 
that  no  action  could  have  been  main- 
tained on  the  special  contract  until  fully 
performed,  and  the  engine  delivered  or 
tendered  to  the  defendants;  that  the  un- 
qualified refusal  of  the  defendants  to  take 
the  engine,  when  it  should  be  completed, 
was  not  a  prevention  of  performance 
which  would  authorize  the  plaintiff  to  sue 
upon    the  contract  on    that    ground.     We 


think  it  was,  and  that  such  absolute  re- 
fusal is  to  be  considered  in  the  same  light, 
as  repects  the  plaintiff's  remedy,  as  an  ab- 
solute, physical  prevention  by  the  defend- 
ants, ibis  view  will  be  found  fully  sus- 
tained bv  the  following  cases:  (,'ort  v. 
Amberga'te  Railway  Co.,  6  E.  L.  &  Eq.,230; 
Derby  v.  Johnson,  21  Vt.,  21;  Clarke  v. 
iMarsiglia,  1  Denio,  317;  Hochster  v.  De 
Latour,  20  E.  L.  &  E;i.,  l.")7.  In  the  latter 
case,  it  was  held  that  a  refusal  of  the 
employer  before  the  work  commenced,  to 
allow  it  to  be  done,  authorized  an  imme- 
diate action  upon  the  contract. 

So,  a  I'efusal  to  make  any  jjai'ment, 
which,  by  the  contract,  is  to  be  made 
during  the  progress  of  the  work,  has  the 
same  effect:  Draper  v.  Kandolpli,  above 
cited ;  and  see  Hoagland  v.  Moore,  2 
Klackf.,  1()7;  Webster  v.  Enfield,  5  Uilra.. 
29S;  Withers  V.  Reynolds,  2  13.  &  Ad.,  fi82. 
See  this  whole  subject  ably  discussed,  and 
the  authorities  cited,  in  2  Smith's  Lead. 
Cas.  (Amsr.  Edit.),  22. to  :!S;  and  tor  what 
will  amount  to  prevention,  see  note  of 
Hare  &  vVallace  to  same,  40.  As  to  mode 
of  declaring  on  the  contract:  Ibid.,  41, 
and  1  Chit.  PI.,  32G. 

It  would  be  unreasonable  and  unjust  to 
hold  that  the  plaintiff,  in  this  case,  after 
the  pf)sitive  countermand  of  the  <lefend- 
ants'  order,  was,  nevertheless,  bound  to  go 
on  and  complete  the  engine,  and  thereby 
increase  the  damages,  before  he  could  re- 
cover for  the  work  already  done.  The 
defendants  carmot  complain  that  tha 
plaintiff  has  given  credit  to  their  asser- 
tion. The  law  will  not  require  a  vain 
thing.  And  it  is  certainly,  in  such  cases, 
much  better  for  both  parties  to  hold  the 
party  thus  notified  to  be  fully  justified  in 
stopping  the  work,  as  it  lessens  the  dam- 
ages the  other  party  has  to  pay,  and  re- 
lieves the  party  who  has  to  do  the  work 
from  expending  further  labor,  for  which 
he  has  fair  notice  he  is  to  expect  no  pay- 
ment. And  it  is  certainly  very  question- 
able whether  the  party  thus  notified  has  a 
right  to  go  on  after  such  notice,  to  in- 
crease the  amount  of  his  own  damages. 
In  Clarke  v.  Marsiglia,  above  cited,  it  was 
held  he  had  no  such  right,  and  that  the 
employer  has  a  right  (in  a  contract  for 
work  and  labor)  to  stop  the  work,  if  he 
I  choose,  subjecting  himself  to  the  conse- 
j  quencesofa  breach  of  hiscontract,  and  that 
j  the  workman,  after  notice  to  quit  work, 
has  no  right  to  continue  his  labor,  and 
i  recover  pay  for  it.  'l^his  doctrine  is  fully 
approved  in  Derby  v.  .Tohnson,  above 
cited.  This  would  seem  to  be  good  sense, 
and,  therefore,  sound  .aw.  And  it  would 
seem  that  any  other  rule  must  tend  to  the 
injury,  and,  in  many  cases,  to  the  ruin  of 
all  parties. 

It  is  unnecessar.v  here  to  review  the  au- 
thorities cited  by  the  plaintiff's  counsel. 
Most,  if  not  all  of  them,  when  carefully  ex- 
amined, will  be  found  entirely  in  har- 
mony with  the  views  above  expressed. 
The  result  of  them  will  be  found  well  and 
fairly  stated,  ami  evidently  form  a  careful 
examination,  in  Allen  v.  Jarvis,  above 
cited.  I  have  made  the  same  examina- 
tion, and  come  to  the  same  result. 

It  may,  however,  be  i)roper  here  to  say, 
that    in  the  case   of   Planche  v.  Colburn,  8 


i 


HOSMER  V.  WILSOX. 


430 


Bins;.,  14,  upon  which  mach  reliance  was 
placed  by  the  counsel  for  the  rlcfenilant  in 
error,  there  was  a  npecial  count  upon  the 
contract,  ns  well  ns  the  common  counts, 
and  It  may  ho  inferred  from  the  opinion 
that  the  plaintiff  was  allowed  to  retain 
his  verdict  upon  the  special  count.  And 
we  Dave  the  hij^li  authority  of  Lord  Camp- 
hell  that  such  was  the  case.  Sec  Hocli- 
sterv.  De  Latour,  20  E  L.  &  Eq.  163,  above 


cited.  As  the  conclusion  at  which  wc 
have  arrived  upon  this  point  diKpi>HeM  of 
the  whole  case,  it  beconies  unnecessary, 
and  even  improper  to  discusH  the  other 
quentiuils  ralHed  in  the  caMe. 

And,  as  we  do  not  conceive  that  under 
a  writ  of  error  we  have  any  power  to 
amend  the  declaration  in  this  rcnpcct,  the 
judKoient  must  be  reversed. 

The  other  justices  concurred. 


HOWE  V.  UAVAVAUD. 


441 


HOWE  v.  HAYWARD. 

(108  Mass.  54.) 

Supremo  Judicial  Court  of  Massachusetts.    Wor- 
cester.    Oct.  Term,  1871. 

T.  G.  Kent,  for  plaiutilf.  P.  E.  Aldrlcb, 
f<ir  (lofendant. 

CHAPMAN,  O.  J.  It  appears  by  the 
repiirt,  that  tlie  parties  made  an  oral  con- 
trart  for  tlie  sale  of  property  by  tlie  plain- 
tiff to  the  defendant,  anri  that  eaeli  of  them 
deposited  the  sum  of  .fSOO  In  the  hands  of 
one  Taft.  The  plaintiff  contendecl  that 
the  money  deposited  by  the  defendant  was 
tjiven  in  earnest  to  bind  tlio  bargain,  or 
in  part  |>ayment.  The  defenilnnt  con- 
tended that  it  was  under  an  aKreement 
that  the  sum  should  be  forfeited  in  ease  he 
refused  without  just  eause  to  [lerform  the 
contract.  The  jury  found  that  it  was  not 
deposited  in  earnest  or  in  part  payment, 
but  was  deposited  "as  a  forfeiture,  to  be 
paid  over  to  the  [)arty  who  was  ready  to 
perform  the  contract,  if  the  other  i)arty 
neftlected  to  do  so;"  and  under  the  in- 
struction of  the  court  found  for  the  defend 


ant.  The  plaintiff  contendB  that  the  find- 
ing should  have  been  for  the  plaintiff,  be- 
cause, If  the  money  was  deposited  as  u  for- 
feiture, as  stated,  it  amounted  to  "ear- 
nest," within  thenieaniuK  of  thestatuleof 
frauds.  Tills  depends  upon  the  pro|>er 
definition  of  that  term  as  used  in  the  Htut- 
ute. 

The  Idea  of  "earnest,"  In  connection 
with  contracts,  was  taken  from  the  civil 
law.  Uul(-rbock  on  I'.racton  (.\m.  transl.) 
145.  It  Is  not  necessary  t(j  cunsider  its 
I)recise  effect  under  that  law.  As  used  In 
the  sta  t u te  of  frn uds, "  ea  rnes t "  is  re^a  nled 
as  a  part  pnymentof  theprice.  '2  lil.Com. 
447.  Porda^e  v.  Cole,  J  .Saund.  3191. 
LnuRfort  v.  Tiler,  1  Salk.  113.  Morton  v. 
Tibbett.  1.0  II.  n.  42H.  Walker  v.  Nussey, 
IC)  .M.  &  W.  WJ.  1  Dane  Ab.  i;:!.").  The  case 
of  MlenUinsop  v.  Clayton,?  Taunt.  o'.iT, cit- 
ed by  the  plaintiff,  turned  on  the  question 
of  delivery. 

The  de|)oslt  with  Taft  was  not  therefore 
e()uivalent  to  an  earnest  to  bind  the  bar- 
train,  or  part  payment,  and  there  was  not 
a  valiil  sale  within  the  statute  ot  frauds. 
The  rulinj;  was  correct. 

Judgment  on  the  verdict. 


lIUiMIiLE  V.  MITCIIKLL 


•H:? 


HUMBLE  V.  MITCHELL. 

(11  Adol.  &  K.  :205.) 

tJiu'cii's    Bench,    Michaclniiis    Vacation.      Nov. 
27,  18.'{9. 

.VsHunipHit  by  the  purcliaser  of  HhnroH  in 
a  joint-.stock  c(>ni|i;ui.v,  called  the  North- 
ern and  reiitral  I5uiik  of  Eii^lnnd,  nt;ainHt 
the  vendor  for  refusiiifj  to  Ki«;n  a  notice  o( 
transfer  tendered  to  him  for  Hjfinature, 
and  to  deliver  tliecertilicate.sof  tlieshareH, 
witlioiif.  which  the  sliures  could  not  be 
transferred. 

I'leaH.  \.  That  the  contract  mentioned 
in  the  declaration  wan  an  entire  contract 
for  the  Kale  of  Kood.s,  warei^,  and  mer- 
chandiser, for  a  price  exceedinp:  £U>,  and 
that  i)lMintiff  had  not  accepted  or  received 
the  sail!  goods,  &c.,  or  any  part  thereof, 
and  di<l  not  give  any  tliinsr  in  earnest  to 
bind  the  bargain  or  in  part  payment,  and 
that  no  note  or  memorandnni  in  writing 
of  the  l)aru;ain  was  made  and  signed  by 
defendant  or  lii.s  agent  thereunto  lawfully 
authorii^ed.     Verification. 

2.  That  the  contract  was  a  contract 
for  the  sale  of,  and  relating  to  an  interest 
in  and  concerning  land.-t,  tenements,  and 
hereditaments  of  and  belonging  to  the 
said  company,  and  that  there  was  not  in 
respeft  of,  or  relating  to,  thesaid  contract, 
an  agreement  or  any  memorandum  or 
note  thereof  in  writing  signed  liy  defend- 
ant, or  by  any  other  person  thereunto  l)y 
him  lawfully  authorized  according  to  the 
form  of  the  statute  etc.     Verification. 

Itcplication:  to  the  first  plea,  ilenying 
that  the  contract  was  tor  the  sale  of 
goods,  wares,  etc.:  to  the  second,  denying 
that  it  was  for  the  sale  of  an  interest  in 
lands  etc.     Issues  thereon. 

At  the  trial  of  tlie  cause  before  Colcriilge 
J.,  at  the  Liverpool  Spring  assizes,  ]s:(S. 
it  was  proved  that  the  company  was  in 
possession  of  real  estate;  lint  no  title 
deeds  to  the  estate  were  produced;  nor 
was  it  sliewn  what  was  the  nature  of  the 


property  Itelonglng  to  the  company,  or 
tli(r  e.\tent  of  their  inti-rcr^t  llierciu.  The 
jury  found  a  verdict  for  the  plaintiff  f)n 
both  issues,  subject  to  a  motion  to  enter 
a  verdict  tor  the  defi-nilant.  In  thefollow- 
ing  Kaster  term  Alexander  olitained  u 
rule  nisi  acconling  to  the  leave  rchcrved, 
citing,  on  the  llist  [ilea.  Ex  parte  Val- 
lanre,'  and,  on  the  second  plea,  lix  parte 
The  \'au.\liall  Bridge  Company,-  anil  Ex 
parte  lloriie.8 

CresHwell  ami  ('rompton  now  shewed 
cause.     Alexander,  contra. 

Lord  DK.VM.VN,  ('.  J.  With  respect  to 
the  (piestinn  arising  on  the  second  plea, 
we  have  alreaily  clisposed  of  it.  The  oth- 
er i)oint  Is  whether  the  shares  in  this  com- 
pan.v  are  goods,  wares,  or  merchandises, 
within  the  meaning  nf  §  17  of  the  statute 
of  frnuds.  It  appears  that  no  case  has 
been  found  direcll.v  in  p')int;  but  it  is  con- 
tended that  the  decisions  upon  reputeil 
ownership  are  apiilicable,  and  that  tin-re 
is  no  material  distinction  between  the 
woi'ds  used  in  the  statute  of  frauds,  an<l 
in  the  banKrupt  act.  I  think  that  both 
the  language  and  the  intention  of  the  two 
acts  are  distingui.-fhable,  and  tliat  the  de- 
cisions ni>on  the  latter  act  cannot  be  rea- 
sonably extended  to  the  statute  of  frauds. 
Shares  in  a  joint-stock  coni|iaiiy  like  this 
are  mete  choses  in  action.  inca|)able  of 
delivei'y,  and  not  within  the  scope  of  the 
17th  section.  A  contract  In  writing  was 
therefore  unnecessary. 

PATTKSON,    WILLIAMS,    and   COLK- 
UIDCi:,  .I.I.,  c<»ncurred. 
Hule  discharged. 

.\  (nio.stion  also  arose  as  to  the  projjcr  mode 
of  estimatinK  the  damages  in  this  action;  but 
on  this  point  the  parties  eventually  agreed. 


'  2  Pencon.  B.  C.  .''.54. 
'1  Glyn.  &  .T.  101. 
■  7  B.  &  C.  032. 


HUTHMACHEI!   r.  HARRIS'S  ADM'RS. 


445 


HT'TIIMACHER  v.  HAJIRISS  AD.M'HS. 

(38  Pa.  St.  491.) 

Siiprfine    Court    of   Pennsylvania.      March    2,'5, 
18G1. 

Triiver  by  RoHniiiin  Gardner,  iitliiiiiilH- 
tratrix,  ami  Silas  Suttun  and  retor  II. 
Seovill,  ailiiiinistra  tijiH  of  EliMtia  HarriH, 
(H'ceaHeil,  ajiainst  David  M.  llii thniaclii-r. 
.ludAnient  for  plaintiffs,  and  defendant 
hrinjis  error.     Aflirmed. 

'riio  property  in  controversy,  eonsistint; 
of  proniiKsory  notes  and  two  watelies, 
was  found  l)y  defendant  in  a  square  hloek 
of  -.vodd,  <>»  tlie  top  of  wliirli  was  a  liori- 
zontal  wlicel  with  a  perpendicular  iron 
siiindle,  called  in  ttie  vendue  list  a  "drill 
machine,"'  which  wa.s  hoiiKht  liy  him  at  a 
sale  of  the  effects  of  the  said  Harris. 

Ilendrick  B.  Wright,  forplaintiff  inerror. 
E.  L.  Uuna,  tor  defendants  in  error. 

WOODWARD,  J.  The  irround  on  which 
weallirui  thisjndKment  is,  that  there  was 
no  sale  of  the  valualiles  contained  in  the 
l)lock  of  svood,  which  Is  called,  in  virtue 
of  its  horizontal  wheel  and  upright  spindle, 
"a  drill  machine."  Sale,  said  Mr.  .Justice 
Wayne,  in  Williamson  v.  I'.erry,  >S  How. 
"44,  is  n  wor<l  of  i)reciHe  lej^al  import,  hoth 
at  law  and  inequity,  jt  means  at  all 
times  a  contract  between  itarlies  to  pass 
rights  of  property  for  money  which  the 
buyer  pays,  or  promises  to  pay,  to  the 
seller  for  the  thing  bought  and  sold. 

That  no  such  contract  was  made  by 
these  parties  in  respect  to  the  conterils  of 
the  drill  marliine,  we  deduce  from  the 
agi'ced  facts  of  the  case.  The  miichine  it- 
self, and  every  essential  part  and  constit- 
uent element  of  it,  were  well  sold.  The 
consideration  paid,  though  only  lifteen 
cents,  was  in  law  a  (|uid  pr<j  nuo,  aixl  the 
sale,  unaffected  by  fraud  or  ndsrepreseii- 
tation,  passed  to  the  purchaser  an  inde- 
feasible right  to  the  machine  anil  all  the 
uses  and  purposes  to  which  it  coulil  l)e 
applied,  lint  the  contents  of  the  machine 
are  to  be  distinguislied  from  its  constitu- 
ent parts.  They  were  uuKnown  to  the 
administrators,  were  not  inventoried, 
were  not  exi)osed  to  auction,  were  not 
sold.  Of  course  they  were  not  bought. 
.Ml  that  was  sold  was  fairly  bought,  and 
may  be  held  by  the  purchasers.  The  title 
to  what  was  not  sold  retiiains  uncliangcd. 
A  sale  of  a  coat  does  not  give  title  to  the 
DocUet-liook  which  may  happen  to  be 
temporarily  deposited  in  it.  nor  the  sale 
of  a  chest  of  drawers  a  title  to  the  de- 
|)osits  therein.  In  these  caseji,  and  maii.v 
others  tliat  are  easily  Imagined,  the  con- 
tents are  not  essential  to  the  existence  or 
usefulness  of  the  thing  contracted  for,  and 
not  being  within  the  contemplation  or  in- 
tention of  the  contracting  parties,  do  not 
pass  by  the  sale.  The  contract  of  sale, 
like  all  other  contracts,  is  to  be  controlled 
by  the  clearly  ascertained  intention  of  the 
I)arties. 

The  argument  proceeded  very  much  on 
the  doctrine  that  equity  will,  in  certain 
eases,  relieve  against  mistakes  of  fact  as 
well  as  of  law;  but   if   there  was   no   con- 


'  tract  of  sale,  there  could  he  no  mistake 
of  fact  to  vitiate  it.  anil  therefore  that 
doctrinehas  no  possible  a|)pllcalion.  Mis- 
take is  sometimes  a  ground  of  relief  in 
e(|uity  ;  but  a  man  who  puts  ui)  his  wares 
at  auction  ami  sells  them  to  the  highest 
bidder,  has  [io  right  to  relief  on  the  ground 
that  he  was  ignorant  of  the  value  of  that 
which  hesidd.  Such  a  mistake  comes  of 
his  own  negligence,  for  it  Is  Ids  duty  to 
liossess  all  necessary  knowledge  of  "  the 
value  of  that  which  he  brings  to  market, 
and  the  rule  is  general  that  if  a  paity  lie- 
comes  remedile.-iH  at  law  by  his  own  negli- 
gence, equity  will  leave  him  to  bear  the 
conseiiuences. 

Noi-  could  these  administrators,  had 
tliiy  sold  the  contents,  have  pleaded,  in 
addition  to  their  ignorance,  their  fiduciary 
character.  a[id  their  jiossible  liability  for 
a  ilevastavit,  in  defeat  of  the  vested 
rights  of  the  i)urchaser;  for,  in  respect  to 
the  personalty  of  the  dei-edent,  they  stood 
in  the  ilead  man's  shoes,  and  were  in  fact, 
as  they  are  coinmoidy  called  in  law,  his 
personal  representntives.  The  law  cast 
the  personal  estate  upon  them  for  pur- 
poses of  nilministration,  atid  a  fair  sale 
made  in  pursuit  of  ihat  purpose,  would 
confer  as  perfect  a  title  as  if  made  liy  a  llv- 
ingowner.  Tlie.v.no  more  than  any  other 
vendor,  could  set  nsiile  such  a  sale  to 
avert  the  conse(|Ucnces  of  their  own  neg- 
ligence. 

Hut  inasmuch  as  they  did  not,  In  point 
of  fact,  sell  the  valuables  which  are  In  dis- 
pute, these  principles,  and  all  the  argu- 
ments drawn  from  the  law  of  mistake,  are 
outside  of  the  case. 

If,  then,  there  was  no  sale  and  purchase 
of  the  contents  of  the  block  or  inachine, 
how  did  Hutlimaclier.  when  he  diwccjvered 
his  unsuspected  wealth,  hold  it'.'  ICvi- 
dently  as  treasure  trove,  which,  though 
comnioaly  deliaed  as  g(dd  or  silver  hidden 
in  the  ground,  may.  in  our  commercial 
day,  be  taken  to  include  the  paper  rejire- 
sentatives  of  gold  and  silver,  especially 
when  they  are  found  hidden  with  both  of 
these  precious  metals.  And  it  is  not  nec- 
essary that  the  hiding  should  he  in  the 
ground,  for  we  are  told  In  ;!  Inst.  1:!J.  thot 
it  is  not  '■  material  wlu-ther  it  be  of  ancient 
time  hidden  in  the  ground,  or  in  tin-  roof, 
or  walls,  or  other  part  of  a  castle,  house, 
building,  ruins  or  otherwise.  " 

The  certain  rule  of  the  common  law,  in 
regard  to  treasure  trove,  as  laid  down  by 
Hracton,  lib.  ;!.  cap.  It,  and  as  (|Uoted  in 
Viner's.Abriilgement.  is,"  that  he  to  whom 
the  property  is.  shall  have  treasure  trove, 
and  if  he  dies  la-fore  It  be  found,  his  exec- 
utors shall  have  it,  for  nothing  accrues  to 
the  king  uidess  when  no  one  knows  who 
hid  that  treasure.  "  The  civil  law  gave  It 
to  the  Under;  according  to  the  law  of  na- 
ture, and  we  suppose  it  >viis  this  principle 
<»f  natural  law  that  was  referred  to  in 
what  was  saiil  of  treasure  hid  in  a  (kid, in 
.Matthew's  tiospei.  xill.  44. 

ISut  the  common  law,  which  we  admin- 
ister, gave  it  always  to  the  owner  if  ho 
coidil  be  found,  and  if  he  could  not  be. 
then  to  the  king,  as  wrecks,  strays,  and 
other  goods  are  given."  whereof  no  person 
can  claim    property:"     3  Inst.  l:iL'.     llulh- 


446 


HUTHMACHER  v.  HARRIS'S  ADM'RS. 


iiiHclicr,  tlioreforo,  held  tlie  uusuld  valiia- 
hlesfor  tlic  personal  rcpresecta lives  of  the 
(leceaHod  owner. 

Several  sporadic  cases,  some  of  which 
were  liishly  aixicryphal,  were  mentioned 
in   the  argument   as  affording  analogies 


more  or  less  appropriate  to  this  case,  but 
it  i.s  quite  unnecessary  to  discuss  them, 
because  if  they  touch,  they  do  not  encum- 
ber the  clear  ground  whereon,  as  aliove 
indicated,  we  rest  our  judgment. 
Tlie  judgment  is  affirmed. 


ILSLEY  0.  STUBBS. 


449 


TI.SLEY  et  al.  v.  STUBBS. 

(9  Mass.  C5.) 

Supreme  Judicial  Court   of  M.-isB.n(husett8. 
Cumhorland.    May  Term,  1S12. 

TliJH  ttOH  a  replevin  of  a  qinititity  of 
Halt  and  conlH.  Issue  lieio^t  taken  upon 
the  (iiie.stion  of  the  property  of  the  plain- 
tiffs in  tlie  artir-les  replevied,  the  Hame  wan 
tried  at  tlio  last  Octolier  term  in  this 
county  Ijefnro  Thatcher,  .1.,  and  a  verdict 
found  by  coiiHent  for  the  defenilant,  huIj- 
ject  to  the  opinion  of  the  court  u|)on  the 
evidence  reported  tiy  the  judge  who  sat  in 
the  trial. 

To  maintain  the  issue  on  their  part,  the 
plaintiffs  relied  on  a  hill  of  sale  from  Lens- 
uel  VVeeUs  and  W.  C.  Weeks  his  son,  dated 
tin- Nth  of  .January  ISO.S  at  I'ortland,  ex- 
pressed to  be  for  the  consideration  of  yOOD 
didlars  and  purport iiiy;  to  con vej' to  the 
plaintiffs,  "all  and  singular  the  contents 
of  the  carn'o  now  on  board  of  the  ship 
l^Ienry  of  I'ortland,  Joseph  Weeks  maslei-, 
now  on  a  voyage  to  Liverpool,  and  back 
to  the  l,'nite(i  States,"— and  also  on  a  tiill 
of  lading  executed  by  the  said  Joseiih 
Weeks,  as  master  of  the  ship  Henry,  at 
Ijiverpool  on  tlie  27tli  of  January  isus; 
by  wliich  he  acknowledges  the  shipment 
and  receipt  of  the  salt  and  coals  in  ques- 
tion on  board  the  said  ship,  to  be  deliv- 
ered at  Portland  unto  Mess.  Weeks  &  Son, 
or  their  assigns;  and  which  bill  of  lading 
wns  endorsed  l)y  Mess.  Weeks  &  Son  to 
the  rilaintiffs  on'the  L"2d  of  March  ISoS. 

Tlie  plaintiffs  also  produced  in  evidence 
an  agreement  made  between  Logan, 
Lenox  &  Co.  and  Weeks  iV  Son,  dated  the 
4th  of  November  ISO",  stating  the  terms 
on  which  the  former  receive  e<msignments 
anil  make  insurance  wlicn  directed  by 
their  corresponilcnts :  and  limiting  the 
draughts  of  the  latter  to  the  estimated 
value  of  their  consignments. — Also  a  let- 
ter from  Logan,  Lenox  iS:  Co.  to  Weeks  & 
Son,  ilated  at  Liverpool  December  2Sth 
ISO",  announcing  the  arrival  of  the  sliip 
Henry,  and  undertaking  to  procure  em- 
ployment for  her,  if  practicable;  and  if 
not,  to  dispatch  her  immediately  with  a 
cargo  of  salt. — Likewise  the  copy  of  an 
account  current  of  Logan.  Lenox  &  Co. 
with  Weeks  and  .'^on,  in  which,  undei' date 
of  January  L'Otli  ls(,'s,  the  former  charge 
the  latter  with  a  cargo  of  salt  and  coals 
shippel  by  the  Henry,  and  credit  them 
with  the  proceeds  of  tlie  outward  cargo 
of  the  same  ship:  which  account  had  been 
produced  before  certain  arbitrators  be- 
tween Logan,  Lenox  «.*c  Co.  and  n  Mr. 
M'Lellan,  but.  as  one  of  the  arbitrators 
testitied.  not  as  sliewing  the  stale  of  the 
existing  demands  between  the  parties  to 
tlie  account:  ii()rdi<l  it  ai)pear  that  it  had 
ever  been  rendered  as  such  to  Weeks  Jt 
Son. 

On  the  other  hand,  the  defendant  relied 
on  an.ither  bill  of  lading  affirmed  to  by 
the  same  master  of  the  sl.ip  Henry  at 
IJverpool,  on  the  10th  of  I-Vliriiary  ISOS; 
by  which  the  same  shipment  of  the  salt 
and  coals  is  stated  to  be  "on  the  proper 
account  and  risk  of  citizens  of  the  I'nlteil 
States,  to    he    delivered    at   lloslon    unln 

LAW  SALKS — 29 


Mr.  Peter  Stiihbs  or  his  asRlgns, freight  for 
the  same  being  paid."— 

The  shi[)ment  In  question  Is  in  both  In- 
ptances  stated  to  have  been  mudo  by 
Logan,  Lenox  &  Co.:  and  the  origin  of 
these  contradictory  bills  of  lading  was  ex- 
(iluined  by  the  testimn(]y  of  Joseph  Weeks, 
the  master  of  the  ship.  In  his  clepoMition 
lit  relates  his  voyage  in  the  Henry  for  ac- 
count of  his  owners  Weeks  &  Son,  from 
Bath  to  Liverpool,  consigneil  to  Logan, 
Lenox  c&  Co.  with  a  cargo,  which  he  de- 
livered there;— their  shipment  afterwards 
of  the  salt  and  coals  for  the  account  of  Ids 
owners,  and  consigned  to  them,  tor  which 
he  aflirmed  to  the  first  bills  of  lading;— 
and  that  during  a  detention  at  Liverpool 
by  contrary  win<ls,  n  requisition  was 
made  upon  him  by  Logan,  Lenox  &  Co. 
in  consequence  of  intelligence  they  had 
received  of  the  failure  of  his  owners,  to 
have  those  bills  of  lading  given  up  and 
others  substituted,  threatening  to  detain 
tlie  ship,  if  this  was  refused.  With  this 
requisition  he  thought  himself  under  a  ne- 
cessity of  complying,  and  accordingly 
signed  the  second  liills  of  lading;  and  re- 
ceived Mr.  Stnbbs.  the  present  defendant, 
the  consignee  named  in  the  second  bills, 
anil  one  of  the  firm  of  Logan,  Lenox  & 
Co.  as  a  passenger;  who  came  out  for  the 
purpose  of  having  the  possession  and 
controiil  of  the  cargo. — After  their  arrival 
at  Portland,  Joseph  Weeks  the  master 
gave  one  of  the  bills  of  the  tirst  set,  which 
he  had  retained,  to  Weeks  &  .Son  his  own- 
ers, who  endorsed  it  to  the  plaintiffs  as 
aforesaid. 

Whitman, for  plaintiffs.  Mellen  and  Km- 
ery,  for  defendant. 

SEWALL,  J.  The  general  question  to 
be  decided  in  this  case  is,  does  tlie  evi- 
dence establish  the  property  of  this  cargJi 
in  tlie  plaintiffs,  claiming  it  under  the  bill 
of  sale  executed  at  Portland  on  the  Stb  of 
January  ISOS? 

.\s  to  the  effect  of  the  bill  of  sale,  re- 
stricting its  operation  to  the  words  of  It, 
there  would  tie  no  question.  For  litprally 
taken,  the  cargo  claimed  under  It  hail  no 
existence  at  the  time  of  the  bargain  and 
transfer,  under  which  the  plaintiffs  claim. 
Hut  this  is  not  tlie  construction  to  be  put 
upon  a  contract  of  this  kin<l.  .\b  between 
Weeks  &  Son  and  the  plaintiffs,  the  bill 
of  sale  undoubtedly  gave  the  lattera  right 
to  tak>  to  their  own  use  whatever  ar- 
ticles did  or  should  constitute  the  home- 
ward cargo  of  the  ship  Henry,  wlien  slio 
should  return  from  the  voyage,  in  which 
she  wns  then  engaged;  that  is.siicli  Inding 
as  she  shoulil  have,  which,  independently 
of  the  bill  of  sale,  woiilil  have  been  tlio 
property  of  the  owners  of  the  vessel;  a 
sense  latterly  and  not  incorrectly  given  to 
the  term  cargo,  as  exclusive  of  any  other 
lading,  "r  gooils  taken  on  freight.  The 
bill  of  sale  may  be  considered  as  establish- 
ing an  uiKpiestlonnble  claim  ami  right 
against  them,  or  any  intere.-it  they  might 
have  in  a  cargo  nflerwarcls  arriving  In 
the  sliip  Henry,  from  Liverpool. 

When  however  the  question  of  property 
Is  with    third    persons.   It   may   bo  uecc»»- 


450 


ILSLET  ».  STUBBS. 


sary  to  examine  the  case  with  more  strict- 
ness. And  in  dcrnding  l)et\veen  parties, 
wliose  interests  are  not  distinguishable  in 
equity,  the  question  may  ultimately  turn 
upon  the  nicest  formalities  of  Icsal  title. 

Strictly  speakinf?  tlien,  the  contract  lie- 
tween  Weeks  &  Sou  and  the  plaintifi's 
gave  them  Ijiit  a  cliose  in  action,  and  was 
rather  a  covenant  than  a  sale.  As 
transferring  an  expectation  or  demand 
against  tlie  correspondents  of  Weeks  & 
Son,  their  factors  at  Liverpool,  the  ven- 
dors of  the  carso  to  be  sliipped  tliere,  the 
liill  of  sale  must  be  considered  subject  to 
all  the  rights  and  duties  of  tlie  ori^jinal 
parties  to  the  shipment,  when  it  should 
be  made;  tlie  shippers  and  master  acting 
without  notice  of  the  transfer  at  Port- 
land. The  ritihts  of  the  shii)perH  or  ven- 
dors of  the  carKo  are  not  to  be  affected  by 
the  bill  of  sale:  and  the  property  acquired 
by  it  is  not  to  be  carried  beyond  the  legal 
demands  of  Weeks  &  Son,  or  their  rights 
in  the  property  in  qup.stion,  against  the 
firm  of  Logan,  Lenox  &  Co.  The  defend- 
ant in  this  action  reijresents  them;  and 
all  their  rights,  opposed  to  the  claim  of 
the  plaintiffs,  are  to  be  allowed  to  him. 

In  this  view  of  the  case,  the  other  cir- 
cumstances and  facts  in  evidence  became 
material  to  the  decision. 

The  agreement  made  for  Logan",  Lenox 
&  Co.  with  Weeks  &  Son,  dated  November 
4th  l.SCiT,  which  may  be  considered  as  re- 
Bulling  in  the  consignment  of  the  ship 
Henry  to  them,  if  relied  on  for  the  plain- 
tiffs as  evilence  of  any  contract  to  send 
them  return  cargoes  for  vessels  consigned 
to  the  house  of  Logan,  Lenox  &  Co.  is 
very  defieient  in  that  i-espect,  and  not  at 
all  suitable  to  the  purpose.  It  not  only 
expressly  negatives  any  intention  of  ad- 
vancing for  consignments,  but  it  contains 
no  stipulation,  engaging  them  absolutel.y 
to  the  purchase  of  return  cargoes,  even 
when  8U|)plied  with  funds.  But  what  is 
more  material,  the  Henry  was  not  con- 
signed to  them  for  the  purpose  of  obtain- 
ing a  return  cargo.  To  the  extent  of  her 
outward  cargo,  or  as  it  proved,  much  ex- 
ceeding the  proceeds  of  it,  had  been  drawn 
and  accepted;  and  the  vessel  was  placed 
entirely  in  the  contrnul  of  Logan,  Lenox 
&  Co.  to  be  employed  b.y  them  on  a  freight 
or  charter  party,  if  to  be  obtained;  and 
cargo  of  salt  was  onl.v  to  be  resorted  to, 
if  nothing  better  could  be  done. 

The  testimony  of  the  master  was,  that 
he  had  no  power  to  dispose  of  either  ship 
or  cargo,  but  was  to  follow  the  orders  of 
Logan,  Lenox  &  Co.  in  all  things  concern- 
ing the  voyage:  and  in  their  letter  under 
date  of  December  liSth  ISO",  after  the  ar- 
rival of  the  Henry  at  Liverpool,  they  un- 
dertake to  get  a  charter  for  the  vessel  if 
possible,  and  onl.v  to  send  a  cargo  of  salt, 
if  nothing  better  could  be  done.  Until 
the  departure  of  the  vessel  therefore,  slie 
continued  under  their  controul,  and  the 
cargo  was  subject  to  their  orders.  And 
their  power  was  not  determined  by  aship- 
ment  intended  for  Weeks  &  Son,  if  after- 
wards a  shipment  for  someother  account, 
or  u[)on  a  charter  or  freight,  appeared  to 
them  advisable.  The  first  bills  of  lading 
were  evidence  of  an   intention,  which,  un- 


til the  departure  of  the  vessel,  Logan, 
Lenox  &  Co.  had  authority  to  reconsider 
and  reverse:  and  this  authority  they  ex- 
ercised in  cancelling  them,  and  substitu- 
ting other  bills  of  lading,  which  placed  the 
articles  of  the  cargo  on  freight,  instead  of 
lieing  on  account  of  the  owners  of  the 
ship.  Their  authority  in  this  respect  was 
not  impaired,  nor  was  the  determination 
on  their  jjart  unjust  or  improper;  because 
it  became  necessary  as  a  measure  for  their 
own  securit.v  upon  an  intended  advance- 
ment, after  the  credit  of  Weeks  &  Son  had 
become  doubtful. 

Besides,  the  first  bills  were  cancelled 
with  the  consent  of  the  master;  a  con- 
sent in  which  he  was  entirely  justified,  be- 
ing conformable  to  the  duties  of  his  own- 
ers and  employers.  This  was  a  restora- 
tion of  propert.y,  which  they  could  not, 
with  any  sense  of  justice,  insist  upon  re- 
taining, at  the  certain  expense  and  los.^  of 
j  their  correspondents. 

j  If  under  similar  circumstances,  and  at 
the  instance  of  Logan,  Lenox  &  Co.  and 
their  threatening  to  stop  the  vessel  by  vir- 
tue of  their  controul  and  authority  over 
the  voyage,  the  master  had  relanded  his 
cai'go  and  returned  empty,  is  it  possible 
to  conceive  that  the  bill  of  sale  at  Port- 
land would  have  given  a  right  of  action 
to  the  plaintiffs  against  Logan,  Lenox  & 
Co.  for  the  value  of  the  cargo  shipped  or 
intended  to  be  shipped,  but  finally  re- 
stored, for  the  best  of  all  reasons,  viz.  that 
the  purchasers,  those  to  whom  it  was  go- 
ing on  credit,  had  no  ability  of  paying  for 
it,  if  the.v  should  fake  it?— And  how  does 
the  reversal  of  the  bills  of  lading  differ 
materially  from  the  case  supposed? 

If  this  reasoning  is  correct,  tliere  is  no 
occasion  of  resorting  in  this  case  to  the 
doctrine  of  stoppage  in  transitu.  For 
Weeks  &  Son  as  consignees,  or  for  their 
assigns  under  the  hill  of  lading,  there 
never  was  a  cargo  in  the  ship  Henry  ia 
transitu:  the  authority  of  Logan,  Lenox 
&  Co.  to  reverse  their  intention,  and  tlieir 
doing  this,  and  substituting  the  second 
bills  of  lading,  was  tantamount  to  a  re- 
storation of  the  property  intended  to  he 
shipped  for  Weeks  &  Son  ;  and  it  must  be 
considered  as  shiyiped  from  the  beginning 
for  another  account.  Their  authority  to 
demand  a  restoration,  and  that  of  the 
master  to  consent  to  it,  were  not  restrict- 
ed by  the  contract  with  the  plaintiffs,  un- 
known to  those  who  were  acting  at  Liv- 
erpool under  an  ajiprehension  of  an  im- 
portant change  in  the  circumstances  of 
Weeks  &  Son,  which  proved  to  be  well 
founded.  This  becoming  known  to  their 
correspondents,  seasonably  to  enable 
them  to  provide  for  their  own  security, 
the  provision  was  made,  and  was  justi- 
fialile  upon  the  principles  of  good  faith 
and  nipi-cantile  honour;  and  was,  I  think, 
legally  effectual  against  the  claim  of  the 
plaintiffs. 

As  a  question  of  fact  upon  the  whole  evi- 
dence, whether  the  shipment  for  the  ac- 
count of  Weeks  &  Son  had  been  finally 
cancelled,  or  was  r)nl.vcolourably  changed, 
some  doubt  might  be  excited  from  the  cir- 
cumstance of  tlie  account  produced  by 
one  of  the  firm  of  Logan,  Lenox  &  Co.  at 


ILSLEY  V.  ST  I  BUS. 


451 


the  ri'fcreticc  botwci'ii  tliciii  uiid  ii  tliiril 
pnrty,  contaiiiliiir  tlic  clinrKCH  of  thoHiilt 
aixl  coiiIh  to  W'ccUrt  &  Son.  Hut  tliiH 
doubt  Ih  rcniovcil  liy  the  tust  iinon.v  of  the 
HUiiiu  witiicHM,  of  the  iiiMiincr  in  which  tiuit 
account  wiih  ohtiiincil.  nnd  the  iictnni 
HtiitK  of  it  )IH  u  incnioi'iinduni  only  ;  anil 
that  it  liad  never  constitiilc'd  an  account 
rendered,  and  liad  never  lieen  offered  aH 
an  exiHtliiK  demand.  Atid  altliouirh  tliis 
nii^ht  be  a  (lUCHtion  ratlier  for  tlie  jury 
tlian  the  court,  yet  in  tlie  actual  Htate  of 
the  evidence,  a  ccMicluHion  upon  it  for 
tlie  defendant  niuMt  he  the  only  correct 
renult,  HO  far  a.s  the  case  is  affected  by 
that  circiinistance. 

W'itli  the  aid  however  of  the  doctrine  of 
stoppay;c  In  trauHitu,  the  (inestion  in  tlus 
cane  may  l)e  more  conclusively,  and  with 
some,  more  satisfactorily  decided.  Ae- 
eordiiiK  to  this  rule  of  the  law  rn<'rchant, 
which  has  become  ingrafted  with  the 
common  law,  the  shipper  or  consiunor  of 
i;oods,  sent  u[)on  a  general  or  particular 
credit,  as  niion  an  order  for  a  return 
carno,  wIk'U  there  is  no  specification,  or 
a  specific  order  and  |)urcliase  of  the  ar- 
ticles sliii)ped,  has  a  riuht,  in  the  event  of 
an  actual  failure  of  (he  c.nsijjnee  or  pur- 
chaser, to  coiiutermand  the  (leliver.v,  and 
cause  them  to  be  delivere<l  to  himself  or 
to  some  ot  her  for  his  use:  and  this  rinht 
ceases  only  with  the  transitus  or  passage 
of  the  soo'lw.  upon  an  actual  or  construct- 
ive delivery  thereof  to  the  consignee  him- 
self. 

A  foreiKn  merchant,  who  for  a  commis- 
sion only  to  himself,  pui'chases  upon  his 
own  credit,  and  ships  upon  the  credit 
which  he  <.;ives  to  his  employer,  is  a  con- 
signor or  vendor  enl  itled  to  the  benedt  of 
this  rule.  Nor  is  the  application  of  the 
rule  to  be  restricted  to  those  cases,  where 
the  contract  of  sale,  as  between  the  eon- 
signor  and  consignee,  is  to  he  considered 
executory;  as  where  the  coiisi^jnee  or 
vendee  has  not  obtained  upon  t  heoredil  af- 
forded him,  what  is  by  the  principles  of  the 
common  law,  a  vested  property.  On  the 
contrary  this  is  supposed  :  and  Iherestric- 
tions  upon  the  e.xerciseof  this  rlK'Ht, estab- 
lished by  KuKlish  decisions,  have  been  de- 
rive<i  from  mercantile  usnjjtes  sanctioned 
by  their  expedienc.v,  anil  by  principles  of 
public  policy,  or  l).v  the  precautions  sut;- 
jiested  by  the  system  of  the  t)nnl«rupt 
laws.  In  itself,  and  as  determining  n 
qtipstion  of  rijrht  between  the  parties  to 
thecontract  of  sale,  the  rule  is  perfectly 
eiiuitable  and  j'nst,  in  every  case  of  tlie 
actual  insolvency  of  the  consifinee:  and 
It  has  been  allowed  to  be  exercised,  even 
where  a  part  of  the  price  had  been  paid, 
or  a  bill  of  exchange  for  It  accepted  and 
end(  rred  over  to  a  third  person.' 

Whenit  is  that  the  transitus  isat  anend, 
and  a  delivery  has  taken  place,  has  been 
a  question  of  some  ditliculty  in  particular 
cases.     By   one   decision,  goods  have  been 


'  Abbott  on  Shipping,  c.  0,  page  ;?57,  (Amor. 
Rdit.);  Feiso  v.  Wray,  3  East,  93;  Mason  v. 
Licklmrrow.  1  H.  BlacU.  MH,  note  a:  Newsom 
V.  TliDriitoii,  (5  Kast,  27,  28;  Hodgson  v.  Loy, 
7  D.  &  E.  440. 


considered  In  transitu,  notwlthBtnndlne 
a  delivery  to  the  master  of  n  ship  char- 
tered solely  by  the  consignee.  In  another 
case,  where  the  goods  attempted  to  bo 
reclaimed  had  been  delivered  to  the  mas- 
ter of  a  sliip  chartei-ed  solely  by  the  ven- 
ilee  for  a  terra  of  years,  and  were  put  on 
board  thereof  destined  by  him  on  a  par- 
ticular adventure, for  which  they  had  been 
purchased,  it  was  hidden  that  the  vendor 
could  not  stop  them.  The  distinction  In 
these  two  cases,  upon  which  these  differ- 
ent decisions  rest,  is,  as  1  apprehend,  the 
eircumst!uico  of  tlie  ultimate  dcstinntion 
of  the  consignment :  for  in  both  cases  the 
consignee  was  the  owner  of  the  vessel;  in 
one  case  for  the  term  of  years;  In  the 
other  case  for  the  voyaire:"  so  that  tliix 
was  not  the  ground  of  decisiini,  as  .\b- 
bott  in  citing  the  cases  seems  to  suppose: 
but  in  the  one  case  the  goods  liad  reached 
the  constructive  possession  of  the  owner, 
the  transitUB  was  at  an  end.  ami  the  fur- 
ther diiection  of  the  goods,  had  been  de- 
termined tiy  the  vendee:  wiiereas  in  the 
other  case,  the  transitus  continued,  the 
goods  lind  not  arrived  to  the  posuessioii 
of  the  owner,  actual  or  constructive,  con- 
sidered as  a  termination  of  their  pasHage 
from  the  vendor  to  the  vendee. - 

In  the  case  at  bar  the  consignee  was  the 
( wner  of  the  vessel,  on  Imanl  of  which 
the  articles,  the  pri>|)erty  whereof  is  in 
()ueKtion,  were  laden.  .And  it  is  to  l>e  sup- 
posed in  making  this  i|uchtion,  that  they 
liaii  been  delivered  to  the  agent  of  the 
consignee  for  his  account  and  risk;  but 
tlic  delivery  was  for  the  purpose  of  car- 
riage to  liim,  and  the  vessel  itself  ami  the 
iiiiister,  at  the  time  the  delivery  was  coun- 
termanded, were  still  under  the  direction 
of  the  consignor.  The  goods  constituted 
a  cargo  :>n  its  passage  to  the  vendee,  to 
give  the  fullest  effect  to  the  first  bills  of 
lading,  that  can  be  contended  for.  The 
right  to  stop  them  therefore,  proving  the 
actual  failure  of  the  consignee,  ^eeins  to 
result  from  a  reasonable  construction  and 
application  of  the  rule  on  this  subject,  and 
both  the  right  and  the  exercise  of  it  are. 
in  our  opinion,  established  by  the  whole 
evidence,  not  only  against  any  claim  of 
the  consignee,  but  also  against  the  claim 
of  his  assigns,  under  the  dei'd  to  them, 
made  nrospectively  and  in  tact  liefore  the 
shipment:  for  which  the  consignor  was 
not  eniraged  by  any  previous  promise  or 
consideratiim.  The  assignment  relied  on 
for  the  plaintiffs  is  not  of  a  bill  of  lading  In 
the  possession  of  tlie  consignee:  and  the 
case  is  not  therefore  to  be  decided  by  the 
usage  found  by  the  jury  in  the  ultininte 
decision  of  the  case  of  I.lckbnrrow  v. 
Mason,"  if  indi'ed  a  similar  usage  witblo 
tills  state  is  proveal>le  In  any  case. 

I'pon  the  whole,  the  opinion  of  the  court 
is  ill  favour  of  the  dcfi'udant ;  an.l  Judg- 
inent  is  to  be  entered  upon  the  venllct 
taken  for  him,  for  a  return  of  the  articles 
replevied,  with  his  damages  and  costs. 


'  Stiibbs  V.  Lund,  7  Ma.ss.  4r>3. 
•5  D.  &  E.  CSG.     Ilaillo  v.  Smith,  1  B.  &  V 
563. 


INGALLS  0.  nERIUCK. 


453 


1NGA1.LS  V.  HEURICIC 

(108  Mass.  351.) 

Supreme  Judicial  Court  of  Massachusetts. 
Essex.    Nov.  Term.  1871. 

Tort  for  the  converHion  of  21  bales  of 
flockH  of  wool,  attached  by  a  deputy  of 
defendant  sheriff  aa  property  of  Willinni 
II.  Loujcee.  in  a  suit  against  LouKee  by 
one  of  liiH  creditorw.  The  plninliff  intro- 
duced eviilence  that  on  Decemlier  IG,  isos, 
he  bargained  with  Lou^ee's  a);ent,  Lewi.j 
U.  Bos  worth,  at  an  aprreed  prioe,  to  cell 
a^ain  ;  that  the  bales  were  numbered  and 
marked,  and  were  stored  in  Loutree's  fac- 
tory;  that  ho  told  Bosworth  that  he 
wished  to  have  them  remain  where  they 
were  for  a  while,  and  \Vf)uld  pay  storajje 
on  them,  to  which  Bosworth  agreed; 
that  he  also  tolil  Bosworth  that  he  was 
{joing  to  New  York  the  next  day,  and 
wislied  some  samples  to  take  with  him; 
that  the  same  day.  at  LouKce's  countinK 
room,  he  received  a  l)ill  ot  the  flocks,  dat- 
ed that  day,  and  signed  by  Lougee,  speci- 
fying the  numbers,  murks,  and  weights 
of  the  bales,  and  acknowledging  the  re- 
ceipt of  the  price;  tliat  the  flocks  were  of 
two  qualities,  and  at  the  same  time  Bos- 
worth gave  him  samples  of  each ;  and 
that  he  saw  the  flocks  at  the  factory 
about  Ueeember,  but  did  not  see  tliem  on 
the  day  of  the  sale  nor  afterwards,  until 
they  were  attached  by  the  defendant's 
deputy.  Bosworth  testified  "tliat,  after 
the  bargain  was  made,  he  went  to  the  fac- 
tory, and  examined  the  bales  to  gft  the 
niin)bers  and  weights,  and  wrote  the  liill 
which  l.ongee  signed  'Lougee,'  anil  deliv- 
ered it  to  the  plaintiff;  that  he  took  out 
the  samples,  which  the  iilaintlff  wanted, 
and  then  sewed  up  the  bales;  that  he  met 
the  plaintiff  in  the  afternoon,  and  lold 
him  th:it  the  bill  and  the  samples  would 
be  ready  for  him  that  evening,  at  hongee's 
counting  room;  and  that  he  gave  the 
samples  to  the  plaintiff  at  the  time  of  the 
delivery  of  the  bill  of  sale. "  The  court 
ruled  that  there  was  not  snilicicnt  evi- 
denceof  thedelivery  of  thegoods  as  against 
the  jiltaching  creditor  of  the  seller,  and 
directed  a  verdict  for  the  defendants.  The 
plaintiff  alleged  excepti(ms. 

J.  K.  Tarbox,  for  plaintiff.  S.  B.  Ives, 
Jr.,  and  S.  Lincoln,  Jr.,  for  defendant. 

COiyr,  J.  It  was  ruled  as  matter  of  la  w. 
In  this  case,  that  the  jury  would  not  be 
authorized  upon  this  evidence  to  finil  a 
delivery  of  the  baled  flocks,  suthcient  to 
pass  a  title  valid  as  against  creditors  of 
the  seller.  There  was  evidence  tending  to 
show  that  the  bargain  for  the  sale  was 
made  with  one  Bosworth.  an  agent  of 
the  seller.  A  receipted  bill  of  parcels, 
signed  l)y  the  seller  liimself,  which  con- 
tained a  description  of  the  bales  by  num- 
ber, mark  and  weight,  was  afterwards  de- 
livered by  the  agent  to  the  plaintiff.  The 
subject  matter  of  the  sale  was  all  thebaled 
flocks  then  stored  in  the  seller's  factory. 
It  was  thus  a  completed  contract  of  sale, 
and  as  between  the  parties  tlie  title  passed 
to  the  plni[itil'f.  Was  there  evidence  to 
go  to  the  jury  of  a  delivery  sullicient  as  to 


creditors?  This  Is  the  only  question,  and 
In  disposing  of  it  we  must  take  the  sale 
to  have  been  made  in  good  faith  and  for 
a  valuable  consideration. 

Ujion  this  iiuestion,  there  was  evidence 
tending  to  show  that  the  flocks  were 
bought  for  resale;  that  the  bales  were 
large,  not  easily  moved,  and  reijulrlDK 
room  for  storage;  that  the  plaintiff,  hav- 
ing no  convenient  place,  agreed  with  Dom- 
worth,  at  the  time  of  the  bargain,  to  let 
them  remain  where  they  were,  and  pu.v 
storage,  and  directed  hini  to  obtain  sani- 
ples  of  the  flocks,  which  he,  the  [)lalntlff, 
could  take  with  him  to  New  York  to  sell 
by:  and  that  Bosworth  accordingly 
o|)ened  the  bales,  took  out  saniplesof  two 
kln<ls  of  flocks,  sewed  up  the  l)ales,  and 
gave  the  samples  to  the  plaintiff  at  the 
time  he  delivered  the  bill  of  paicels.  The 
plaintiff  bought  upon  his  own  previous 
knowledge  of  the  article,  ha ving  seen  the 
flocks  at  the  store-room  of  the  factory  a 
week  or  two  before.  The  samples  were 
not  required  or  used  by  him  in  reference 
to  his  own  purchase,  and  Bosworth,  in 
taking  tliem  from  the  bales,  acted  unrler 
the  directions  and  as  the  agent  of  the 
plaintiff,  and  with  reference  to  future 
sales  by  hin?.  It  was  a  signilicant  act  of 
ownership  anil  possession  on  the  part  of 
the  plaintiff,  after  the  sale  was  agreed  on, 
through  Bosworth,  acting  In  this  respect 
as  Ills  agent.  There  is  something  more, 
therefore,  here  disclosed,  than  a  mere  con- 
tract of  sale  without  delivery  or  posses- 
sion under  it.  .\nd  we  are  of  opinion,  un- 
der tli(>  la w  heretofore  laid  down  by  the 
court,  that  the  casi?  should  have  been  sub- 
mitted, with  proper  instructions,  to  the 
j  u  ry . 

It  was  early  held  that  the  possession  of 
personal  chattels  by  the  vendor  after  un 
alleged  sale  is  not  conclusive  eviilence  of 
fraud.  Upon  iiroof  that  the  sale  was 
made  in  good  faith  and  for  a  valuablecon- 
siderntion,  and  that  the  possession  alter 
the  sale  was  in  imrsuancc  of  some  agree- 
ment not  inconsistent  with  honesty  in 
the  trans.nction.  the  vendee  miuht  hold 
against  cre.litors.  Brooks  v.  Powers,  l.'i 
Mass.  '2M.  It  was  declared  by  Morton.  J., 
in  .Shnrtleff  v.  Willnrd.  I'.t  IMck.  LML',  I'll, 
that,  whatever  the  rule  upon  this  point 
may  be  in  Kngland  or  elsewhere,  it  Is  per- 
fectly well  settled  In  a  series  of  cases  here, 
that"  the  possession  of  the  vendor  Is  only 
oviderce  ot  fraud,  which,  with  the  man- 
ner of  tile  occupation,  the  conduct  of  the 
parties,  and  all  othi-r  evidence  beorlng  up- 
on tile  question  of  fraud,  is  for  the  consid- 
eration of  the  jury.  It  is  certain  that 
slight  evidence  of  delivery  Is  sntflrient; 
and  if  the  buyer  with  the  consent  of  the 
seller  obtains  possession  liefore  any  at- 
tachment or  secoml  sale,  the  transfer  is 
compli'te  without  formal  delivery.  Sliuin- 
way  V.  Huller,  s  I'irk.  44:!.  A  dellverv  of 
a  I'lortion  in  token  of  the  whole  Is  a  suiJl- 
cient  constructive  deliveiy  as  against 
creditors,  altlioui;h  the  gomls  are  in  the 
))ossession  of  various  persons.  I.egg  v. 
Willard.  17  I'ick.  Hii.  In  Hardy  v.  Pot- 
ter, 10  tiray.  v.".  the  jury  were  told  that, 
although  the  plaintiff  only  took  u  Idll  of 
sale.  vet.  if  prior  to  the  attachment  he 
had    iiccii    to    the  place  where   the  lumber 


454 


INGALLS  V.  HERRICK. 


was,  and  had  exercised  acts  of  ownerslii]) 
over  it.  by  virtue  of  his  purcliase,  tliat 
would  constitute  a  delivery  of  it  good 
against  a  subseiiuent  attachment.  And 
tliis  instruction  was  held  not  open  to  e.\- 
ception.  altlioush  the  evidence  was  that 
the  purcliaser  had  only  been  to  Beverly 
and  seen  the  lumber  there.  See,  also, 
Phelps  V.  Cutler,  4  Gray,  137;  Tu.xworth 
V.  Moore,  9  Pick.  347:  BuUard  v.  Wait,  K! 
Gray,  .w;  Ropes  v.  Lane,  9  Allen,  502,  and 
11  Allen,  591. 

The  fact  that  the  possession  of  the  prop- 
erty is  retained  by  the  vendor  l)y  agree- 
ment,  and  does  not  follow  the  bill  of  sale, 
is  held  by  this  court  to  lie  in  most  of  tlie 
cases,  evidence  of  fraud,  to  go  to  tlie  jury. 
In  many  of  the  states,  the  fraud  is  held  to 


be  an  inference  of  law  resulting  inevitably 
from  the  possession.  And  such  was  sup- 
posed to  be  the  earlier  English  rule,  as 
laid  down  in  Edwards  v.  Harben,  2  T. 
1!.  '>S7  ;  but  the  only  point  there  decided 
was,  that  an  absolute  conveyance  with- 
out possession,  if  there  be  nothing  but 
that,  is  in  ])oint  of  law  fraudulent.  In  the 
more  recent  cases,  it  has  been  declared 
tiiat  the  continued  possession  by  the  ven- 
dor, of  goods  sold,  is  a  fact  to  he  consid- 
eied  by  the  jury,  as  evidence  of  fraud,  and 
is  not  in  law  a  fraud  in  itself.  Martin- 
dale  v.  Booth,  3  B.  &  Ad.  498.  Benjamin 
on  Sales,  3()3. 

There  was  evidence  here  of  delivery, 
which  should  have  been  submitted  to  the 
jury.    Exceptions  sustained. 


INGLIS  V.  STOCK. 


457 


INGI-IS  V.  STOCK. 

(10  App.  Cas.  2C3.) 

English  House  of  Lords.     March  'M.  18So. 

.Vppcnl  trotn  nn  order  of  the  court  of 
appeal  (lirott  M.  I!.  BnKKf<.llny  iukI  Liiid- 
le.v  I>.  .I.l.,)'  rovi-rsiim  n  (IcciMjot)  of  I-'ield 
.].-  Tlic  factM  are  MtiUed  in  tli(;  ri'ixtrtH  of 
tho  dcc'iHioiiH  tic'low,  and  in  the  jud>;tnent 
of  tlie  lord  chancellor  In  IIiIh  house. 

Sir  F.  Herschell,  8.  (J..  and  A.  Cohen,  Q. 
C,  (.J.  Goroll  Harn(!S,  with  thcMii.)  for  ap- 
pellant. C.  KiisHt'll,  (.J.  ('.,  K.  T.  Iteid.Q.C, 
and  Danck  wert.s.for  ri'Hpondont,  were  not 
heard. 

Earl  of  SKM'.OIt.N'lC,  L.  C.  My  IohIh, 
tho  (incstioii  in  Huh  caHe  is  whether  the 
pliiintifl'  had,  at  the  tiiiie  of  the  Iohh  of  the 
Mteanier  City  of  Dulilin  in  the  lUver  liihe, 
on  the  4th  of  February  IMsl.  an  int^urahle 
interest  in  :!!)l)0  baffs  (or  ;!'.)()  tonH  weight) 
of  sn(j;ar,  part  of  that  veKBel's  cargo '.'  Tho 
court  of  appeal.  revevHinjr  a  judgment  of 
Fielil  .1.,  decided  in  the   plaintiff'H   favour. 

I?y  two  contracts  ilated  repectively  the 
7th  and  iL'tli  of  .lanuary  issl,  which  werc^ 
(except  as  to  dates  anil  parties)  identical 
in  their  terms,  .Messis.  Itrake  &  Co.  mer- 
chants of  London,  asireed  to  sell  to  one 
Beloe  and  to  the  plaintiff  respectively,  L'OO 
tons  each  of  (ierman  I)ee1root  sugar  to  he 
shipped  fron)  llamliurg.  The  material 
terms  of  the  contract  lpet\vcen  Drake  and 
Keloe  are  these: — "London,  "tli  .laiinary 
IWl,  .Messrs.  \V.  I'.eloe  i^  Co.  A\'e  have  this 
da.v  sold  to  you  for  your  account  -dO  tons 
(ierman  hect  sugar  of  the  crop  isMi-Sl,  at 
'ils.  l)d.  per  cwt.  of  5(1-^;  kilos,  net  f.  o.  h. 
Haml)iii-g  for  ss  degrees  net  saccharine 
contents."  I  need  not  reail  all  thedctaiis. 
'"The  sugar  shall  analyse  between  ^.'I'.fi  net 
both  inclusive;  six-pence  jier  cwt.  to  lie 
paid  or  allowed  for  each  ilegree  above  or 
below  ss,  fractions  in  proportion;  but 
anything  above  ;i2  not  to  be  paid  for. 
fshould  the  average  analysis  of  whole  con- 
tract exceed  !)(!,  such  ex;'ess  is  not  to  lie 
paid  for.  Tlie  analysis  is  to  be  effect.-d  by 
a  pulilic  German  chemist."  Then,  omit- 
ting some  immaterial  points,  it  goes  <in  : 
"For  .I.'iuuary  delivery  at  Hamburg. 
Payment  liy  cash  in  London  in  exch;inge 
for  bill  of  lading  le."s  two  months"  intt-r- 
est  at  ■)  per  cent.  |)er  .Mniium.  .\ny  dis- 
pute arising  out  of  this  contract  to  be  set- 
tled by  arbitration  of  two  London  brokers 
In  the  usual  way."' 

I?y  another  contract,  dated  the  7th  of 
January,  the  plaintiff  bouglit  from  Beloe 
the  sugar  which  I!eloe  hail  contracted  to 
bu.v  from  Drake  &  Co.,  upon  sulistanliall.v 
the  same  terms,  except  that  the  price  to 
be  paid  tor  it  to  I'.eloe  was  to  be  Jls.  lu'i,il. 
per  cwt.,  subject  to  like  variations  lie- 
tweeu  tlie  same  limits ;  and  that  the  aver- 
age analysis  of  the  whole  contract  was 
"not  to  exceed  !1(l."  The  price,  therefore. 
In  each  case  was  to  be  variable,  according 
to  the  percentagi>  of  saccharine  matter 
In  the  sugar;  the  good.^were,in  each  case, 
to  be  delivet-eil  nt  Hamburg  free  on  board, 

'V2  Q.   R.   n.   .-(U. 
!)  Q.   n.   D.   70S. 


and  (consequently)  were,  after  Mhlpn;ent, 
to  be  at  the  imrchaser's  risk;  and  the 
bills  of  lading  were  to  be  retained  by  the 
vendors  till  the  purchase-nioneyM  were 
paid. 

The  plaintiff  and  ISeloe  at  I'-ristoI  and 
the  agents  of  Drake  &  Co.  at  Hamburg 
engage,!  space  (or  tliese  sugars  in  a  gen- 
eral ship,  the  City  of  Duldin,  one  ol  a  line 
of  steamers  trading  between  Itristol  and 
Hamburg.  Tl>e  shipping  agents  at  ISris- 
tol,  being  informed  by  the  plaintiff  of  IiIh 
two  purchases  fi-oni  ISeloo  and  Drake  & 
Co  ,  and  learning  from  Ueloe  that  Drake 
&  Co.  weri-  his  vendors,  advised  their  cor- 
responik-nts  at  Hamburg  that  4(iO  tons  of 
sugar  wonhl  be  coming  for  that  ship's 
cargo  from  Drake.  I  do  not  think  it  mate- 
rial, but  it  is  proper  to  notice  that  the 
plaintiff  did  not  know  frcjiu  whom  Ueio"; 
had  bought,  and  Drake  &  Co.  did  not 
know  that  lieloe  had  sold  to  the  plaintiff, 
till  after  the  lo»s. 

The  iiuanf  ity  actually  put  on  board  the 
City  oi  Dublin  at  Haniliurg  was  only  ^'J«0 
bags,  or  ."!'.m  tons.  As  to  this,  I  think  It 
enough  to  say,  that  If  the  plaintiff  would 
have  li;id  an  insurable  interest  in  4(100 
bags,  under  the  circumstances  of  the  case, 
he  had,  in  my  opinion,  such  an  interest 
though  the  quantity  was  short  by  ten 
tons. 

No  other  sugar  belonging  to  Drake  & 
('<».  was  put  on  lioard  this  ship.  The  Ulioi) 
liags  were,  therefore, specifically  separated 
from  the  bulk  of  the  vendor"s  own  sugar; 
anil  they  were  shipped  under  Drake  & 
Co. "s  contracts  with  Beloe  and  the  plain- 
tiff, witli  a  vi(!W  to  and  in  (ultilment  of  the 
agreement  of  Drake  &  Co.,  as  vendors,  to 
|iut  the  purchased  sugar8"free  on  board." 
The  present  controversy  arises  out  of  the 
manner  in  which  this  was  done.  Facli  bOK 
was  distinguished  by  a  mark  denoting  its 
jiercentage  (according  tocertilied  analysis) 
of  saccharine  matter;  and  ten  liills  of  lad- 
ing, for  |ia reels  liearing  marks  correspond- 
ing will)  those  on  the  bags,  were  madeoiit 
in  an  ini|iersonalfi>rm,iind  sent  (according 
to  the  contracts)  to  Drake  &  ("o.,  to  lie 
retained  by  tlieni  till  the  time  of  payment 
sliould  arrive.  The  aggiegate  consign- 
ment (except  as  to  the  deliciency  of  100 
bags)  was  proper  and  suitable  to  fullill 
the  two  contracts,  without  exceeding,  as 
toeith.Tof  tliem,  the  average  o(  '.Hi  per 
cent,  of  saccharine  matter;  and  (accord- 
ing to  the  evidence  of  Mr.  Hales,  a  partner 
in  the  linn  of  Drake  &  Co.)  it  was  made 
up  and  ■"ordered  forwanl"  as  being  ""mo 
livislble."  I'.nt  no  particular  bags  were 
then  set  apart  or  marked  as  appli-able  to 
the  one  coalract  more  than  the  other;  It 
was  thought  sutlicient  by  Drake  \-  Co..  or 
their  agents,  to  leave  this  to  be  done 
when  tlie  bills  ol  lading  came  forwaril. 
Tliere  would  be  no  practical  dilliculty  In 
doing  it  in  a  proper  and  reasonalile  way, 
even  if  the  plaintiff  had  not  purchased 
Heine's  contract,  inasmuch  as  neither  pur- 
chaser could  cbilin,  and  Drake  A:  Co.  were 
not  to  be  p.'iid  tor,  any  excess  bi'vond  'JO 
per  cent,  of  the  average  nnalvsis  of  the 
whole  contract ;  though  It  was  conceiva- 
bly possible  that  it  mitht  have  been  dune 
porversciv  and  nnreasoiialily.  The  divi- 
sion was"  in    fact    made   by  Drake  &   Co.. 


458 


INGLIS  V.  STOCK. 


who  forwardefl  invoices  of  the  parcels  at- 
tributed to  each  purchaser  on  the  evening; 
of  the  4th  of  Feliruary,  after  they  hail  re- 
ceived notice  of  the  Iosh.  In  the  division 
HO  made  the  deficiency  of  ten  tons  vras  as- 
cribed to  the  plaintiff's  contract,  being 
the  later  in  date.  No  question  was 
raised  by  the  plaintiff  or  by  Helue;  and 
the  purchase-moneys  were  paid  by  the 
plaintiff  according  to  the  contracts  and 
invoices.  But  by  this,  which  was  done 
after  the  loss,  the  underwriters  were  (of 
course)  not  bound. 

Jt  is  contended,  on  the  part  of  the  ap- 
pellant, thai,  under  these  circumstances, 
and  for  want  of  a  proper  division  before 
the  loss,  the  shipment  had  not  the  effect 
of  divesting  the  prior  title  of  Drake  &  (^>., 
the  vendors,  or  of  passing  any  interest  in 
these  sugars  to  the  plaintiff.  This  argu- 
ment appears  to  me  to  confound  two  very 
different  things;  the  appropriation  neces- 
sary as  between  vendor  and  purchaser, 
and  the  division,  as  Itetween  purchaser! 
and  purchaser,  of  specilic  goods,  actually  | 
appropriated  to  the  aj-gregate  of  the  two 
contracts.  I  do  not  think  it  follows  that 
there  could  be  no  appropriation  by  the 
vendor  of  which  the  purchasers  might 
take  the  lienetit,  merely  because  the  par- 
cels of  goods  appropriated  were  mixed,  in 
the  act  of  appropriation,  so  as  to  re()uire 
some  subsequent  division  or  apportion- 
ment. Whether  this  may  have  happened 
by  previous  agreement  or  course  of  deal- 
ing between  all  the  parties  (in  which  case 
there  could  be  no  serious  doubt),  or  by 
accident,  error,  or  want  of  proper  care  on 
the  vendor's  part,  appears  to  me  to  make 
no  difference  in  principle.  The  purchasers 
might  possibly  be  entitled  to  reject,  but 
the  vendors  could  not,  in  my  opinion, 
without  their  consent  retract  the  appro- 
priation. 

In  the  present  case,  I  see  no  reason  to 
doubt  that  the  difficulty  arising  from  the 
confusion  of  parcels — material  only  to  the 
settlement  of  the  amounts  payable  by  the 
plaintiff  to  his  two  vendors— if  not  solved 
by  consent  (or  by  arbitration,  for  which 
each  contract  provided)  would  have  been 
soluble  by  principles  of  law,api)lied  to  the 
facts  and  the  terms  of  the  contracts.  The 
necessity  for  doing  this,  and  the  fact  that 
it  had  not  been  done  at  the  time  of  the 
loss,  do  not, in  my  opinion,  suHicientlv  dis- 
tinguish this  case  from  Browne  v.  HareS 
and  earlier  authorities  to  the  same  effect. 
The  goods  were,  by  the  act  of  the  vendors, 
8ei)a rated  from  the  bulk  of  all  other  goods 
belonging  to  them;  they  were  shipped 
"free  on  board"  in  what  (for  that  i)ur- 
pose)  was  the  purchaser's  ship,  under  two 
contracts  so  to  deliver  them ;  in  both 
which  contracts  (subject  to  the  payments 
to  be  made  by  him  to  Drake  &  Co.  and 
Reloel  the  plaintiff  was  then  (although 
Drake  &  Co.  did  not  know  it)  solely  inter- 
ested. I  cannot  infer  from  any  part  of  the 
evidence  that,  in  so  shipping  them  indis- 
criminately, the  vendors  intended  to 
break,  instead  of  fulfilling,  their  contracts, 
and  to  take  upon  themselves  ('-ontrary  to 
those  contracts)  the  subsequent  risk  of 
loss,  and  the  liability  to  freight.     Yet  this 


(as  it  seems  to  me)  would  be  the  necessary 
consequence  of  the  appellant's  argument. 
I  think  the  order  api)caled  from  is  right, 
and  I  move  your  Lordships  to  aftirm  it, 
and  to  dismiss  the  ajipeal  with  costs. 

Lord  Br^.4CKBURN:-My  lords,  1  also 
agree  that  there  is  no  occasion  to  bear 
the  counsel  for  the  respondent. 

The  respondent  (plaintiff  below)  had  in- 
sured himself  by  Moating  policies  to  the 
extent  of,  as  I  understand,  £.50U0.  One  of 
the  policies  is  set  out  as  a  sample  policy. 
It  is  a  policy  for  £4000,  part  of  £ftO()0,and  is 
marked  on  the  margin  No.  4;;47.  By  it 
the  respondent  caused  himself  to  be  in- 
sured in  respect  of  goods  conveyed  in  a 
steamer  "from  the  continent  of  Europe  be- 
tween Havre  and    Hamburg,    both    ports 

included,  ^"r'  Kouen  "„"/  Nantes  to  Bristol 
upon  any  kind  of  goods  and  merchan- 
dises,""  beginning  the  adventure  upon  the 
said  goods  and  merchandises  from  the 
loading  thereof  aboard  the  said  ship  at  as 
above  upon  the  said  ship  etc.,  including 
all  risks  of  craft,  and  so  shall  continue  and 
endure  during  her  abode  there  upon  the 
said  shii)  etc.  And  further  until  the  said 
ship  with  all  her  ordnance,  tackle,  ap- 
parel etc.  and  goods  and  merchandises 
whatsoever,  shall  be  arrived  at  as  above 
upon  the  said  ship  etc.  until  she  hath 
moored  at  anchor  twenty-four  hours  in 
good  safety  and  upon  the  goods  and  mer- 
chandises until  the  same  be  there  dis- 
charged and  safely  landed. "  Then  I  pass 
over  a  sentence  which  is  immaterial  for 
the  present  purpose.  "The  said  ship  etc., 
goods  and  merchandises  etc.,  for  so  much 
as  concerns  the  assured  by  agreement  be- 
tween the  assured  and  assurers  in  this  i)ol- 
icy  are  and  shall  be  valued  at  £4000,  part 
of  £5000,  on  sugar  to  be  hereafter  valued 
and  declared.  To  follow  policy  for  £4000 
No.  j:i^  dated  Cth  of  December  1880."    The 

meaning  of  to  be  "hereafter  valued  and 
declared "  is,  that  if  the  insured  has  sev- 
eral adventures,  all  within  the  description 
in  the  policy,  out,  he  may  select  at  his 
pleasure  which  is  to  be  protected  l)y  the 
policy;  and,  on  his  giving  notice  of  such 
a  selection  to  the  insurers,  the  policy  is  as 
if  it  had  named  that  adventure  from  the 
beginning.  Of  course,  if  adventures  have 
been  previously  named,  these  come  first, 
and  whether  those  prior  subjects  of  insur- 
ance are  lost  or  not,  the;  policy  is  equally 
pro  tanto  functus  officio.  And  I  believe 
the  practice  is  if  there  is  nothing  to  shew 
that  the  first  adventure  which  came  in 
safe  was  selected  not  to  be  under  the  pol- 
icy, it  is  taken  to  be  so,  though  there  is 
no  <leclaration. 
The  meaning   of  "To   follow   policy  for 


£4000   No. 


is,  that  there  being  consec- 


'  3  H.  &  N.  484:    4  H.  &  N.  822. 


utive  policies  any  loss  declared  is  to  be 
borne  first  by  the  earlier  policies,  and  that 

it  is  not  till  after  the  policy  No.  fqjMs  ex- 
hausted, either  by  losses  or  declared  ad- 
ventures wliich  have  come  iusafe.that  the 
underwriters  on  the  policy  wh'ch  follows 
are  to  bear  the  balance  of  the  loss  if  any. 
There  is  not,  as  far  as   I  remember,   any 


A 


INf;[,I.S  0.  STOfK.  459 

othor   ilifferenpo   between   a   policy  in    the  ;  though  the  excRHB  wns  not  to   be  pn id  for 

IitcHcnt  lorin  with  a  (leflaintlon    that  it  is  No   portion   of  tlie  HiiKar   now   in    (Jlnnuto 

on   HUfjrar    valued    at    tisoo   loaded  in    tlie  wuh  either  liclow  s.')  or   al)ove  irj  ho   that 

City  of  Diihlin  Hteaincr  Hailed    froni    Hutu-  tliiH    term    doin   n<jt  come  in  to  opera  lion 

buPK    to    lliiMtoi    on  tlic   :!r(l   of    Kelnuary  |  Tlie  Hunar  was    to  lie  "net   fiee  on    hoard 

18S1,  and  an  ordinary  policy  for   thowanio  IlnmliurK  '  and  it  whh  for  January  dellv- 

Hun"'"  valued  at  the  Hanie  Butn  on  IheHunio  ery  at  Iluinliur){.     Tlie   price    wan    to   de- 

Hleamer  on  the  wanie  voyaKe.  |iend    on    the   "averau"     analVHlH    of     the 

The  defendant  below  iH   an    underwriter  wholecontraet."    "Should  llieu verncean- 

for  tino  on  eacli  of  these  conHecutive  tloot-  nlysis  of  tlie  wliole  contract  exceed  !M)Much 

injr  policieH.  excess  is  not  to  he  paid  for.  "    T!:es«j|lcitor- 

There  is   no   dispute,  at  least  now.  that  Rcneral  raised  an  argument  on  this  clause 

the    City    of    Duldin    is   sucli    a    Hteanier,  which    I   shall     notice     hy-and  hve.      The 

and    the  voyage   such    a    voyage   as    was  price  was  to  be  paid  In  London  in  exclinnKo 

witliin  the   terms  of   the  policies,  nor  tiiat  for  l)ill  of  ladinj;. 

the  values  and  declarations  were  prop-  N'ow  under  this  contract  the  first  thing 
eriy  jriven,  nor  that  tliere  was  enough  left  to  be  done  was  by  lieloe  (the  buyer).  He 
une.xhaustr'il  on  the  policies  to  enable  the  must  let  Drake  the  seller,  or  rather  sup- 
underwriters  to  pay  a  total  loss.  Hut  it  plier,  liuow  in  due  time  on  what  slilp  the 
was  said  tliat  the  situation  of  tlie  plain-  Koods  were  to  be  shipped  free  on  board, 
tiff  with  rctiard  to  tlie  suf^urs  was  not  for  till  he  knew  that,  Urake  could  not  put 
sucli  as  to  Kive  him  an  insurable  interest,  tlie  >j;oods  on  board.  Meloe  mi^'lit  las  in 
And  I  have  no  doiitit  that  in  order  to  re-  fuel  he  did),  eiinaKe  to  put  su«ar  on 
cover  auairist  an  underwriter  the  assured  bonrd  several  steamers  liouiid  to  Itrlstol, 
must  show  tliat  he  suffers  loss  in  respect  but  lie  midht  have  made  an  enKiiKenient 
of  the  thint;  insured.  In  case  of  an  insur-  to  ship  su;;arfor  Leitli  and  wish  to  have 
ance  on  gooils  if  lie  shews  that  he  had  at  the  suuar  put  on  board  the  Leilh  steamer, 
the  time  of  tlie  loss  the  whole  legal  i)rop-  Ur  he  miulit  (thouKh  that  was  less  likely) 
erty  in  the  goods  which  were  lost,  he  iin-  have  charlereil  a  steamer  for  I^ondon,  or 
donble<lly  does  shew  it.  But  I  do  not  any  other  port,  and  wish  the  sugar  to  be 
agree  that  this  is  the  only  way  in  whicli  put  on  board  tliat.  As  soon  as  he  had 
he  can  sliew  an  insurableinterest  in  goods,  securei]  ro<»in  in  the  steamer  he  diil  select, 
or  that  any  relation  to  goods  such  that  if  and  let  Drake  &  Co.  know  in  good  time 
the  goods  perish  on  the  voyage  the  (ler-  on  what  steamer  they  were  to  ship  them, 
son  will  lose  the  wlnde,  and  if  they  arrive  Drake  &  Co.'s  part  of  the  contract  begins; 
safe  will  have  all  or  iiart  of  the  goods,  they  are  bound  to  have  there  at  Ham- 
will  not  give  an  interest  which  may  be  burg,  and  to  ship  free  on  hoard  that  ship, 
aptly  descrilied  as  goods.  l  L'OO  tons  of  sugar  answering  in  all  respects 

In    the   present   case   there   has   been    a  the  descriiition  in  the  contract.     I'rovlded 

good  deal    of  ext  raucous    matter  brought  the  sugar  of  the   proper  quantity  and    de- 

iiito  the  diKciissioii.     I  tliiiik  if  it  had  been  scription    was    put   on    board  that  ship  it 

remembered  that  the  three   contracts,  viz.  was    no   concern  of   Beloe's  where  or  how 

that  of  the  7th  of  .January,  between  Drake  Drake   &  Co.  got  it.     So  soon  as  they  had 

and  lU'loe,  that  of  the  same  date  between  done  that    they  had    fullill''(l    their  part  of 

Ueloe   and    the  plaintiff,  and    the  contract  the  contract  so  far      liut  the  price  was  to 

of  tlie  I'JtIi  of  .January  between  Drake  and  bo    jwiid    in    London    in  exchange    for   bill 

the  plaintiff,  were   all    in    writing;  an<I    it  of   holing.     .\nd  no   doubt    from  that  it  Is 

had  been    seen    that  they  are  so  expresseil  to  be   implieil    that    Drake   &  Co.  were    to 

that,  as  In    ni.v  ojiinion,  there  is   no  doubt  take  a   bill  or  hills  of  lading   for  the  sugar 

as    to    their    construction,    the     objection  they  put  on  board  and,  were   in    due  time 

would     have    been     much     more    clearly  to  be  ready  and  willing  to  give  the  bills  of 

raised,  not  I  think  for  its  benelit.  lading  in  London  in  exchange  for  the  price. 

Drake  iSc  Co,  of  London,  who  were  largo  If   Drake   &   Co.  did  this  Heloe  was  bound 

importers  of  beet   sugar   manufactured  in  to  pay  the  price. 

•  Jerniany,  m-ido  a  contract  with  lieloe  of  Now  Hcloe  had  on  the  same  day,  hut 
liristol,  who  sonietiiues,  as  we  liiid,  whetlicr  bi'fore  or  iifter  he  had  made  the 
bought  to  sell  again.  Tliere  are,  I  gather  cimtract  witli  Drake  &  Co.  does  not  a|i- 
from  a  let  ter  of  the  ..".th  of  .January  from  pear,  niaile  a  contract  with  the  plaintiff  to 
Ilcrmaiiu  of  llaiiibiirgto  Drake,  trading  supply  liim  with  L'dU  tons  ofsugaratl^d 
lines  of  steiiiiicrs  running  twice  a  month  a  cwt.  higher  price  tlian  tluit  at  whi(di 
from  llamhurg  to  Liver|)ool,  Leith,  and  Drake  hinl  ag.-ced  to  su|iply  Iteloe.  .\8 
Bristol,  and  it  maybe  other  jilaces;  but  the  plaintiff  knew  where  he  wauled  the 
to  J.,on(lon,  and  it  may  be  other  places,  if  sugar  tliis  was  to  be  sliiiiped  "free  on 
a  steamer  is  wanted  from  Hamburg  it  board  .\.  1  steamer  to  Bristol."  The  do- 
must  be  chartered,  but  of  course  it  may  scription  of  the  sugar  was  the  same  hh 
be  diartered.  that  in  the  contract    between    Drake  and 

And  now  by  the  contract  Drake  &  Co.  Beloe  except  tluit  it  was  sai^l  "average 
bound  themselves  to  Beloe  to  sup|ily  U'lM)  analysis  not  to  exceed  00."  The  solicitor- 
tons  of  (lerinan  lieet  sugar  of  tliecr<ip  of  general  said  that  if  tlie  average  analysis 
ISSO-sl.  It  was  not  only  to  beOerinan  beet  i-xceeded  ltd.  lieloe  was  bound  to  take  It 
HUgarlMit  it  was  toanalyse  between  S.'iand  from  Driike.  but  not  to  pay  the  excess  In 
9".' "l)ut  anything  above  !12  not  to  be  pnid  price;  lint  tlie  plaintiff  was  not  bound  to 
for;"  so  that  it  would  seem  that  sugiir  take  this  more  valuable  lot  at  all;  but 
below  s.'i  would  not  fuUil  the  description  would  be  in  his  right  If  he  rejected  It. 
In  the  contract,  but  sugar  above  9'-' might  What  would  have  ln'cn  the  case  if  that 
be    given    in    fiillilmeiit    of   the   contract,  point    was   raised    by  the   facts,    we   iietd 


460 


INGLTS  V.  STOCK. 


not  inquire,  though  I  have  a  strong  sus- 
picion that  a  jury  would  not  much  fa- 
vour it. 

But  on  looking  at  the  documents  it  ap- 
pears that  not  only  were  The  averages  un- 
der 91),  but  that  by  no  possible  slinffling  of 
the  oDOO  bags  actually  put  (Jii  board  the 
<:ity  of  Dublin  could  2000  bags  have  been 
selected  the  average  ot  which  would  ex- 
ceed 90.  The  plaintiff  did  not  luiow,  and 
liad  no  reason  to  inquire,  where  Beloe  was 
to  get  the  sugar  with  which  he  was  to 
supply  him.  The  plaintiff  savv  Edward 
Stock  (his  nephew  as  it  happens,  l)ut  that 
is  immaterial),  the  agent  for  the  Bristol 
line  of  steamers,  and  according  to  the  evi- 
dence of  both  the  Stocks,  the  plaintiff's 
directions  were  to  secure  room  for  the  iOO 
tons  in  the  steamer,  which  would  leave 
at  the  end  of  the  month;  and  on  the  11th 
of  January  Edward  Stock  &  Son,  the 
Bristol  agents  for  the  steamers,  wrote  to 
Nisstle  &  Gunther  the  following  letter:  — 
"There  are  200  tons  of  sugar  sold  for  ship- 
ment the  second  half  of  this  month,  hut 
we  have  not  yet  ascertained  the  names  of 
the  shippers.  There  are  also  further  par- 
cels in  treaty,"  and  so  f<jrth.  This,  it 
must  be  noticed,  was  belore  the  contract 
between  Drake  and  the  plaintiff  on  the 
12th  of  January, and  how  there  canbe  any 
doubt  raised  "that  the  plaintiff  did  his 
best  as  far  as  regards  securing  room  on 
that  steamer  to  take  on  iKjard  the  sugar 
which  Beloe  was  to  ship  or  cause  to  be 
shipped,  I  am  unable  to  conceive.  He  had 
to  advise  Beloe  of  this,  and  it  is  sworn 
that  he  did  so,  and  I  see  no  possible  rea- 
son for  doubting  that  he  did. 

The  position  of  things  then  as  between 
Beloe  and  the  plaintiff  was  this, —The 
plaintiff  had  done  his  part,  and  unless 
Beloe,  by  himself  or  Drake,  or  any  one 
else,  put  the  proper  quantity  of  sugar  of 
the  proper  description  on  hoard  the 
steamer  the  plaintiff  had  a  cause  of  action 
against  Beloe.  If  Beloedid  i)ut  the  projier 
quantity  on  board  he  was  entitled  to  re- 
cover tlie  price  in  exchange  for  l)ill8  of 
lading,  and  it  was  no  answer  that  the 
goods  had  perished  at  sea  before  the  bill  of 
lading  was  offered.  He  did  send  an  in- 
voice specifi'ing  themarks  and  numbers  of 
2000  bags,  undoubtedly  put  on  board, 
which  Beloe  alleged  had  been  shipi)ed  on 
plaintiff's  account. 

If  these  were  proper  bills  of  lading  for 
the  sugar  shipped  it  is  diflicult  to  imagine 
a  clearer  case  of  a  loss  of  sugar.  Jt  is 
said  the  bills  of  lading  which  he  offered  to 
give  in  exchange  for  tlie  cash  were  not  the 
bills  of  lading  of  goods  shipped  for  him  on 
the  City  of  Dublin,  and  therefore  he  was 
not  bound  to  pay  in  exchange  for  such 
bills  of  lading;  instead  of  being  liable  to 
pay  Beloe  the  price  he  had  an  action 
against  him  for  breach  of  contract  in  not 
shipping  as  he  ought  to  have  done.  This 
requires  us  to  notice  some  more  of  the  evi- 
dence. When  on  the  12th  of  January  the 
plaintiff  had  made  hiscontract  with  Drake 
he  at  once  proceeded  to  Edward  Stock  & 
Sons,  who  on  that  very  day  advised  Niss- 
tle &  Co.  that  the  200  tons  were  coming, 
so  that  plaintiff  had  done  his  part  in  se- 
curing room  for  that  200  tons,  and  if  Drake 


&  Co.  have  not  shipped  them,  he  has  a 
cause  of  action  against  them.  They  did 
not  ship  the  whole  200  tons,  hut  only  i;i  i 
tons— ten  tons  or  100  bags  meant  to  be 
shipped  having  been  delayed  —  for  that 
Drake  &  Co.  sent  an  invoice  and  received 
payment.  And  as  I  said  about  Beloe,  if 
Drake  &("o.  have  offered  the  plaintiff  bills  of 
lading  for  goods  which  were  not  shipi)ed 
for  him  he  has  a  cause  of  action  against 
Orake  &  Co.,  and  was  not  bounil  to  pjiy. 
But  if  Drake  &  Co.  have  fultilled  their  con- 
tract and  the  bills  of  lading  are  those 
referring  to  the  1900  bags,  then  the  subse- 
quent lossby  perils  of  the  sea  is  noanswer. 
The  plaintiff  must  pay  the  price,  and  has 
lost  it,  and  that  is  as  clear  a  loss  as  can 
well  be. 

When  Drake&  Co., or  rathertheir  agents 
at  Hamburg,  were  shipping  thesugar  and 
held  the  mate's  notes,  it  was  no  floubt 
their  busin^•ss  to  see  that  a  proper  hill 
of  lading  for  each  separate  shipment 
was  signed;  and  if  at  any  time  before  the 
bills  of  lading  left  Hamburg  they  had  been 
allocated  to  each  shipment,  no  objection, 
not  even  an  idle  one,  could  have  been 
raised.  But  instead  of  doing  so  the  whole 
of  the  bills  were  sent  in  a  lump  to  London 
that  they  might  be  allocated  there.  This 
was  perfectly  bona  fide.  Drake  &  Co.  had 
no  interest  in  favoui'ing  one  more  than 
the  other,  and  were  to  be  paid  exactly  the 
same  price  per  bag,  whether  they  allocat- 
ed it  to  the  one  or  to  the  other.  And  if 
they  had  done  this  before  the  loss,  I  do 
not  see%vhat  dam  age  either  Reloeor  Stock 
could  have  sustained  by  the  allocation  be- 
ing made  in  London  instead  of  in  Ham- 
burg. 

Now,  I  have  been  quite  unable  to  see, 
even  if  the  i)lnintiff  had  sustained  some 
damage,  that  it  could  have  been  damage 
going  to  the  whole  root  of  the  matter,  so 
as  to  form  a  defence  for  the  plaintiff 
against  an  action  by  either  Drake  &  Co.  or 
Beloe  for  not  paying  tor  the  goods  in  ex- 
change for  the  bills  of  lading;  that  is, sup- 
posing the  plaintiff  (because  prices  had 
greatly  fallen,  or  from  any  other  un- 
worthy motive)  had  wished  to  get  off. 

And  if  it  were  so,  I  think  the  case  would 
fall  entirely  within  what  Lord  Hatherley, 
in  Anderson  v.  Morice,*  says  is  the  princi- 
ple of  Sparkes  v.  Marshall. ^  The  insurers 
have  no  right  tf)  call  upon  the  insured 
to  exercise  a  possible  option  to  he  released 
from  their  contract.  But  the  loss  having 
happened  before  the  actual  allocation, 
the  plaintiff's  loss,  when  it  happened,  was 
a  loss  not  of  200  tons,  but  of  200  tons  par- 
cel of  890  tons,  so  that  the  loss,  though  ex- 
actly the  same,  is  said  not  to  be  the  same 
in  description,  because  it  is  the  loss  of  an 
undivided  i)ortion  of  the  goods,  instead 
of  being  the  loss  of  the  goods  themselves. 
I  am  quite  unable  myself  to  perceive  why 
that  should  make  the  slightest  diffei'ence. 
In  the  merits,  certainly  it  does  not.  1  am 
quite  unable  to  perceive  why  an  undivided 
interest  in  a  parcel  of  goods  on  board  a 
ship  may  not  be  described  as  an  interest 


'  1  Apn.  Cns.  73.5. 
'  2  Bing    X.  C.  7G1. 


JNGI-IS  V.  STOCK. 


401 


in  RoorlBjiiHt  nsmuch  oh  if  it  wore  an  inter- 
C'Ht  In  every  portion  of  the  koocIh.  N(»  ihi- 
tliority  WHS  elteil  in  order  to  shew  tlint  it 
WiiH  not  HO,  and  I  oais  wee  no  reason  for  it. 
Tiien,  tiiat  lieinj;  no,  of  e<)nrHe  it  follows 
lliat  tlieie  is  no  defence  at  all,  and  this  is 
my  opiniun. 

'I'IdH,  liowever,  is  not  the  ground  on 
wldcl)  the  court  of  appeal  decided.  Tiicy 
thouKlit  tliat  there  was  Hhewn  to  lieacns- 
(oiii  (»r  eonrse  of  dealing  wliieh  rendired 
Drake  i*i  C'o.'s  conduct  a  literal  fnllilnient 
of  the  contract.  I  Mm  not  entislied  that 
on  the  evidence  such  a   custuui    or  course 


of  trade  is  «hewn.  I  do  not  nny  It  Ih  not, 
Imt  I  would  at  least  wish  to  hear  the  re 
Hpon<1ent's  counsel  lieftireclecidinK  on  that 
Kround.  On  the  other,  uh  1  liuve  nlrcudy 
intimated,  I  have  no  diiuht  at  all. 

L<ird  WAT.SON:  My  lords,!  concur  lu 
the  judKuientH  delivered,  and  hove  noth- 
ing to  add. 

Lord  FITZtiERALD:  My  lonls.  I  olso 
concur. 

Order  appealed  from  alltrnied,  and  ap 
'  peal  distnlHsed  u  ith  co8tt). 


TROX  CLIFF  CO.  c.  HUIIL. 


4C3 


IRON  CLIFF  CO.  V.  BUIIL  et  al. 
(3  N.  W.  Uep.  209.  42  Mich.  80.) 
Suprome  Court  of  Michigan.     Oct.    30,    1S70. 
Error  to  Marquette. 
\V.  P.  Ileuly,  ti)r  plaintiff  in  error.     Dan. 
H.  Hall,  lor  defendants  in  error. 

(JHAVES,  J.  In  1S71  defendants  in 
crroi'.  with  one  JanieH  Westernian,  wer^ 
pur.suiii;'  the  furnafc  hurtlneHH  at  Sliaron, 
inthcKtiite  of  I'cnii.si'lvania,  aw  copart- 
nerH,  under  the  luiinc  of  the  WcKtcrnian 
Iron  CoMipany,  and  the  plain!  iffs  in  error 
were  a  mining  corporation  underthe  laws 
of  Michif-an,  and  enKaued  in  mining  iron 
ore  at  NeRaiinee,  in  our  northern  peninsula. 
Tlie  eor|)oration  were  from  time  to  time 
Kliip|)in;;:  t  heir  ore  to  Krie,  I'ennKylvania. 
and  th"  Westernian  company  were  in  the 
way  of  receiving  ore  from  that  point,  by 
rail,  foi-  their  liusiness. 

.\t  this  time  Hlioden  &  Co.,  of  Cleveland, 
Ohio,  wern  airentsfor  the  corporation  in 
contractiii};  sales  of  their  ore,  and  on  the 
lirHt  day  of  August  of  that  year  they  eon- 
traeteil  on  lieh;!lf  of  the  (,'liff  compau.y 
with  tli(!  Wcsterman  company  for  the  Hale 
of  a  (jnaiitity  of  ore. 

The  agreement  was  written,  and  In  these 
tei'ms:  ".V^ieement  between  the  Iron 
Cliffs  Iron  Company,  of  Nesaunee.  Lalie 
Superior,  by  its  ajj;ents,  Hliodes  &  Co.,  of 
Cleveland,  Ohio,  and  Westernian  Iron  Co., 
of  Sharon,  I'.i,  made  at  Cleveland,  Ohio, 
August  I,  I'vTl  :  Witnessetli,  that  tin;  said 
Iron  Clilfs  Iron  Comi)any,for  the  consider- 
.-itions  hereinafter  named,  hercljy  ajrree  to 
sell  to  the  H.ild  U'csterman  Iron  Co.  two 
tliDUsand  uross  tons  of  I'.arnuni  iron  ore, 
of itSHtandanl  qualily, deliverable  at  Krie, 
I'a.,  during  the  season  of  IsTl,  afloat  at 
the  docks  of  the  Krie  &  Pitts.  1;.  U.  Co., 
and  as  near  .'lOD  tons  per  month  as  prac- 
ticalile,  but  with  the  ajjcreement  that  if  ore 
is  lost  by  disasters  of  navi;i;ition  too  lute 
to  be  replaced,  said  Iron  Cliffs  Iron  Com- 
pany shall  not  be  held  accountable  for 
non-delivery  thereby  occasioneil.  Said 
ore  is  to  be  paid  for  by  the  said  Wester- 
nian   Iron   Co.  at   the   rate  of  s.ao  dollars 

per  ton, in  e(|ual  iiayments  of  .If each. 

payable  on  the  first  days  of  Aujiust,  Sep- 
tember, Octot)er  and  Nc^vember  next,  re- 
spectively, each  of  which  payments  is  to 
consist  of  thenoteof  said  Wesrerman  Iron 
Company  for  WM)  per  ton  dollars  at  four 
months,  payable  ut  Cleveland,  Oliio,  ami 
L'..'!(>  dollars  in  cash,  all  in  funds  par  at 
Cleveland.  Said  Westernian  Iron  Co.,  for 
the  above-named  considerations,  hereby 
BRree  to  bu.v,  receive  and  pay  for  said  ore 
us  above  mentioned." 

The  Westerman  company  paid  in  full  for 
the  amount  of  orecontracted  for,  but  some 
3110  tons  out  of  the  2,1)01)  airreed  for  failed 
to  reach  the  works  of  the  Westerman  com- 
pany at  Sharon,  and  Westernian  having 
retired  ami  assigned  his  interest  to  defend- 
ants in  error,  they  proceeded, after  n  lapse 
of  nearly  si.'i  years,  to  bring  this  action  on 
account  of  the  minin);  ore. 

They  were  allowed  to  recover,  and  the 
corporation  has  brou;xl''t  error.  The 
pointa  agitated   are  numerous,   but    the 


I  case  depends  on  one  or  two  main  codrIc]- 

I  crntions. 

I     The  plaintlffh   In  error   nctnally  Hhlppcd 

'  to  the  railroaci  dock  at  Idle  n  conHldern- 
bly  lar;^er  ((uanlity  than  was  buri:ulned 
to  till'  Wi'sterman  coinpanv.  and  tliey  In- 
tended  2,(100  tons  o(  it  for  them. 

.\s  no  tjiie  appc'iied  to  accept  It  nflont 
it  was  landed  mi  the  dock  in  charge  of  the 
railroad  ((iinpaiiy  for  the  bi  n.llt  of  the 
liuyers.  Tins  was  the  only  course  fairly 
practicable,  and  it  was  the  coursi"  the 
Westernian  company  expectPil  \voul<I  he 
taken,  and  the  course  which  received  their 
subsei|u>'nt  sanction.  The  position  of  de- 
lendanls  in  error  that  the  ore  was  to  Ite- 
conie  the  lunperly  of  the  Westernian  com- 
pany only  as  it  was  delivered  to  them  nt 
.Sharon,  and  that  durini;  its  rlcposit  on 
the  dock  in  a  laruer  [lile  It  remained  the 
property  of  plainliffs  in  error,  cannot  l>c 
s.istaiiied.  I'.otli  parties  understood  that 
it  should  be  left  anil  was  left  for  the  rail- 
road company  to  hold  and  carry  for  the 
buyers. 

The  circumstnncethat  the  lulecontaincd 
more  than  was  barg.iined  t(j  the  Wester- 
nian company  is  of  no  importance  under 
the  facts  in  tliis  record.  It  was  all  of  the 
same  kiinl  and  (luality,  and  there  was 
notliing  to  do  except  to  taki-  away  from 
the  c<>miiion  mass  the  reciuired  ipiantlty, 
and  tliecase  iscertaiii  that  it  was  fiill.v  con- 
templated that  the  railrcad  company 
should  attiMicl  to  that  business.  Khodea 
&  Co.  notitied  the  agent  of  the  railroad 
company  that  2.iiOO  tons  of  the  ore  be- 
longed to  the    Westr-rman   com|ianj,  :ind 

!  he  forwarded  over  I, (iOO  tons  which  they 
received  ,  and  in  the  course  of  the  fall,  and 

i  whilst  he  was  sending  the  ore  forward, 
they  interposed  and  re(|uired  him  to  cease 
for  awhile.    The  explanation  given  is  that 

1  they  lacked  room,  and  that  the  riiilroail 
company  would  charge  them  for  the  use 
of  the  cars  if  left  nnloailed  at  Shiiron. 

Here  was  a  clear  exercise  of  dominion 
over  the  ore,  and  an  act  inconsistent  with 
the  notion  that  it  was  not  sutiject  to  their 
contr(d,  jind  that  delivery  was  to  be  made 
l)V  plaintiffs  in  error  at  Snaron. 

According  to  the  evidence  the  failure  of 
tl-o  Westernian  comiiany  to  receive  the 
missing  ore  at  Sharon  was  owing  to  a 
miscarriage  liy  the  railroad  company, and 
it  aiipears  tliat  sor)n  after  discovery  of 
the  loss  they  sued  the  railroad  company 
to  recover  for  the  ore  as  their  iiroperty. 
This  was  an  uneciuivocal  assertion  of  their 
understanding  that  the  ore  was  umler 
thelrcontrol  as  their  property  when  piled 
upon  the  dock  and    ready  for   removal   to 

[Sharon  by  the   railroad  company,  and  by 

I  them  known  to  be  sutiject  thereto. 

ThecliTUit  judgeallowed  thejury  to  llnd, 
however,  that  of  the  ore  in  that  situation 
the  portion  whidi  was  taken  by  the  rail- 
road coinpanv  and  liy  them  miscarried 
was  not  at  the  risk  of  the  Westernian 
conipanv,  I'r  their  proiierty,  but  was  still 
the  propertv  of  the  Cliff  coriioratlon.  In 
the  hands  of  the  railroad  company  as  the 
agents  of  the  Cliff  corporation.  We  think 
this  was  contrary  to  uiniuestioiiable 
facts.  ,     .      _, 

The  refusal  to   permit  certain  adjudiicd 


464 


IRON   CLIFF  CO.  IK  nVUh. 


cases  in  Pennsylvania  to  be  read  to  the 
jury  from  tlie  books  of  reports  was  not 
error.  Tbelawof  Pennsylvania  was  not 
in  dispute.  The  claim  was  that  there  ex- 
isted at  Erie  a  particular  custom  or  usacre 
in  rcRard  to  the  mode  of  handling  and  de- 
liverins  ore,  and  this,  if  true,  was  a  local 
fact,  not  necessarily  stable,  but  subject  to 
bechangeilas  experience  and  altered  cir- 
cumstances might  dictate,  and  it  was  not 


a  matter  to  be  proved  by  law  books. 
Much,  however,  of  the  way  in  wliicli 
tilings  were  done  there,  and  all  of  im- 
portance, was  matter  of  necessity  and  of 
understanding  rather  than  of  custom. 
Further  discussion  does  not  appear  neces- 
sary. 

The  judgment  must  be  reversed,  with 
costs,  and  a  new  trial  granted. 

The  other  justices  concurred. 


I 


.JACKSON    c.  ITPI'EK. 


407 


JAfKSO.N  et  al.  v.  Tri'I'HU  .-t  al. 

(5  N.  E.  Rep.  05,  101  N.  Y.  515.) 

Court  of  Appeals  of  New  York.      March  2, 
ISSO. 

ThiK  action  was  hroiicht  to  recover 
daiiiaReH  for  an  alle^fd  breach  of  warran- 
ty in  a  contract  of  Bale.  The  facts  are 
stated  in  the  cawe  an  follows:  Thedefend- 
nntH,  lit  West  Tro.\ ,  N.  Y.,  on  the  28th  day 
of  Fehrnnry,  ISKd,  orally  sold  to  the 
lilaintiffs  about  ei^lit  hundred  tons  o(  ice, 
which  was  licinii  cut  at  Hound  pond,  near 
<jlenH  Kails,  N.  Y.,  and  agreed  to  place  the 
same  in  a  Iioiihc  which  they  warranted 
Hhould  be  a>;ood,  HubMtantial  house,  which 
Hhould  stand  a  year.  Thei)laintiffs  orally 
atrrecd  to  ])ay  for  said  ice  tiiesum  of  eighty 
cents  a  ton.  No  ineinoranduni  was  made 
in  wiitiuK  of  this  contract,  and  no  money 
was  paid  at  that  time.  Some  time  after 
this,  said  ice  was  received  and  accepted 
by  the  plaintiffs  in  said  house  built  by  the 
licfcndants.  .\fter  this,  about  -May  1,  IssO, 
the  plaintiffs  f.jave  the  defendants  ¥lil5.  in 
full  for  said  ice,  by  creditinK  said  amount 
on  an  iccount  Wight  had  against Tupper. 
\Ylien  said  credit  was  jiiven,  tiothint;  was 
said  liy  either  party  about  said  contract 
or  its  "terms.  About  May  10,  Isso,  the 
house  fell.  It  was  not  jtroperly  construct- 
ed ;  It  was  neither  j;oo(l  nor  substantial ; 
its  deffcts  were  latent.  'I'hey  were  not  dis- 
covered b.v  the  plaintiffs  before  said  house 
fell,  and  coiild  not  have  l)een  discovered 
by  an  inspection  of  the  building  liefore  it 
fell.  Its  defects  were  known  to  the  defend- 
ants. The  plaintiffs  suffered  daniaires  to 
the  amount  of  f4.l.'JI.  The  comiilaint 
was  ordered  amended  to  deniund  as  dam- 
fl^cs  the  amount  proved.  The  defendants 
on  the  trial  introduced  no  evidence.  At 
the  close  of  the  plaintiffs'  case  the  defend 
ants'  counsel  moved  for  a  nonsuit. 

N.  P.  Ilinman,  for  appellants.  G.  B. 
WelliiiBton,  for  respondents. 

AXDIJEW.S,  ,1.  It  Is  c<inceded  that  the 
oral  contract  of  February  L'S,  lisso,  for  the 
sale  and  storage  of  the  ice,  was,  when 
made,  void,  under  tliestatuteof  frauils.  It 
must  also  be  conceded,  under  the  decisions 
Id  this  state,  that  it  was  not  valiilated  by 
the  payment  made  in  May,  ISso.  By  our 
statute,  payment  operates  to  take  an 
oral  contract  for  tbe  sale  of  goods  for  the 
price  of  f.')0  or   more,  out   of   tlie  statute. 


only  when  It  Is  made  at  the  time  of  the 
contract.  2  Rev.  St.  130,  §  i.  The  deci- 
sions have  construed  this  iirovlslon  of  the 
statiit4-  with  great  strictness.  Hunter  v. 
\Vetsell,57  N,  Y  375,  s4  N.  Y.  :A'.):  AIIIs  v. 
Read,  45  N.  Y.  14J.  It  is  in  substance  held 
that  payment  subsei|uently  made,  al- 
thouKh  conforminic  to  theoral  agreement, 
is  insufficient  of  itself  to  make  the  prior 
oral  aKreetjient  valid.  TIhii'  must  be 
enough,  in  arldition  to  the  act  of  pay  ment, 
to  show  that  the  terms  of  the  prior  oral 
contract  were  then  in  the  miii<ls  of  the 
parties,  ami  were  reallirmeil  by  them, 
and  this  being  shon-n  a  cause  of  action 
arises,  not  on  the  prior  oral  contract,  but 
on  the  new  contract  made  at  the  time  of 
the  payment.  The  plaintiffs  did  not  bring 
their  case  within  this  principle.  There 
was  no  restatement  of  the  terms  (jf  the 
prior  oral  agreement  when  the  payment 
of  May  1,  iNsi).  was  made,  and  no  exprexs 
re<(>gnition  tlx-reof.  nor  was  the  payment 
maile  for  the  avoweil  purpose  of  binding 
the  prior  bargain.  It  is  expressly  found 
that  nothing  was  said  at  the  time  by 
either  partj"  about  the  contract  of  Febru- 
ary L's,  INso,  or  its  terms.  But  a  prior 
void  contract  may  be  valjclated  by  a  sub- 
sequent  receipt  and  acceptance  by  the 
buyer,  pursuant  thereto,  of  the  goods,  or 
part  of  them,  which  are  the  subject  of  the 
contract.  2  Rev.  SI.  l:Mi,  §  :{;  .McKnlght 
V.  Dunlop,  5  N.  \.  5:17.  Where  this  has 
been  clone,  the  cnuse  of  action  arises  on 
the  original  oral  agreement,  authenticated 
by  the  act  of  acceptance.  Thi're  is  no  stat- 
iitediflicidty,  as  in  the  caseof  a  snbse()uent 
I)n.vment,  because  the  statute  ib^es  not, 
as  in  that  case,  re<piire  that  the  accept- 
ance must  be  at  the  time  of  the  making  of 
the  oral  agreement. 

It  was  found  in  this  case  that,  after  the 
oral  agreement  of  February  I's,  IS-HI,  was 
maile,  "the  said  Ice  was  nreived  ami  ac- 
cepted by  the  plaintiffs."  It  is  impossible 
to  construe  the  finding  except  as  referrinR 
to  the  Ice  which  was  the  subject  of  the 
oral  agreement  of  that  date,  and  as  n'fer- 
ring  to  an  acceptance  thereunder.  This 
relieved  the  contract  from  the  ban  of  the 
statute. 

No  question  is  presented  as  to  the  right 
of  the  plaintiffs  to  the  judgmentrecovered, 
assuming  that  the  contract  of  February 
28,  IJSSO,  was  validated. 

The  judgiuent  should  be  allirmed. 

All  concur. 


JAMES  0.  PATTKX. 


469 


JAMES  T.  PATTEN. 

(6  N.  Y.  9.) 

Court  of  Appeals  of  New  York.     18.51. 

This  action  whh  upon  a  contract,  i)f 
wiilcli  a  nienidrandura  wan  given,  in  ttie 
followiut;  wordK: 

".Vlbuny,  .Marcli  12,  1S47.  Mr.  TlioraaH 
.laincH,  bon^lit  iif  M.  &  S.  Patten,  for  tlie 
relief  committee,  three  tliouKatid  biiHlieJH 
yellow  corn  (fifty-si.v  pounds  per  l)ushel), 
to  be  delivered  at  the  opening  of  the  Hud- 
son river  navijiation.  at  oar  store  in  Al- 
lianv,  at  eighty -one  centH  per  husliel,  $2,- 
i:iO. " 

Tills  iiieniorandnm  was  admitted  to  l)e 
in  the  hnndwritinff  of  one  of  the  defend- 
ants. The  plaintiff  tendered  the  price  and 
ileniamled  the  corn,  whicli  the  defendants 
rehiseil.  The  price  had  risen  from  eighty- 
one  to  ninety-seven  cents  per  bushel.  The 
<li'fendant  moved  for  a  nonsuit  on  the  fol- 
low ing  grounds:  First,  that  thecontract 
was  nol  subscribed  by  them;  and  second, 
tliat  lh(!  contract  was  not  made  with  the 
plaintiff,  but  with  the  relief  comniitlee. 
The  motion  was  denied,  and  the  defend- 
ants excepted.  The  defendants  then 
offered  to  prove  that  the  plaintiff  |)ur- 
chased  a  large  (juantity  of  corn  as  agent 
of  a  committee,  known  as  the  Irish  relief 
committee,  and  that  tin*  <lerendant8,  on 
tlse  opening  of  the  navigation  in  lS-17, 
tendered  to  said  conimittee  the  three 
thousand  bushels  of  corn  mentioned  in  the 
above  memorandum  or  bill  of  Kal(^  The 
court  o.Ncluded  this  evidence,  and  the  de- 
fendants excepted.  Judgment  wasdirect- 
eil  In  favor  of  the  plaintiff  for  l$.")41.4.'). 
The  case  was  tried  by  the  court  without 
a  jury.  The  judgment  was  alhrmed  at 
the  general  term  of  the  supreme  court, 
and  the  defendants  aiipeaied. 

0.  -M.  .lenkins,  for  appellants.  S.  H. 
Hammond,  for  resiMindents. 

FAKilO,  J.     The  principal  question  to  be 
decided  in    tliis  case  is  wliuther  the  memo- 
randum   of  the  contract   entered    into    be- 
tween   the   parties    was   a    valid    note   or 
memorandum  of  such  contract  within  the 
Btatute  of  frauds.     The  obj"ction  made  to 
It  is  that  it  was  not   subscribed  by  the  de- 
fendants, the   p.'irties  to  be  charged  there-  : 
by.     The  section  of  the  chapter  of  frauds 
contained  in  the  Hevised  Statutes  relative 
to   contracts    for    the   sale   of   goods   and 
chattels,  (Icrlarcs  that   every  contract   for 
the  sale  of  goods,  etc.,  for  the  price  of  ?.")0,  1 
or    more,    shall    be  void;   unless,  I,  a  notej 
or  memoranduin  of  such  contract  be  niadei 
In  wiitiiig,  anil  be    subscril  ed    by  tlie  par- 
ties   to    be   ''harged   thereby;  or   2,   unless 
the  buyer  shall   accept  and  receive  part  of! 
such    goiids,  etc.;  or.    :!,  unless    the   buyer' 
shall  at  the  time  pay  some  part  of  the  pur-  j 
chase-money.     (2    H.  S.  l-it!,  §   :i.)     The  old  I 
Btatute   of   frauds,    passed     February     2i>,  ' 
17>*7,  as    well   as    the    IJritish  statute  of  2*.) ; 
Charles    II,  chap.  ."!,  were   substantially  in  I 
the  same  words,  with  Hie  exception  of' the! 
word    "subscrihed."     (1    Uev.    ],.    of    ISKi, 
p.   79,  §    lij;   1  Chit,  on    Cont.  .'is^.l     Those 
statutes  required  thenotcor  memorandum 
of  the  contract  to  be  signed  l)y  the  parties 
Instead  of  being  subscribed  by  them.     Un- 


der the  juillcial  construction  of  our  old 
statute  and  of  the  IJritish  statute,  it  was 
not  necessary  to  the  voiidlty  of  the  con- 
tract, or  of  the  note  or  memnrandum 
thereof,  that  it  should  be  signed  under- 
neath or  at  the  end.  It  was  held  t<»  be  a 
compliance  with  the  statute.  If  the  name 
of  till!  party  tobe  charged  aiipeared  in  any 
part  of  the  instrument,  either  at  tlie  top, 
in  the  niiildle,  or  at  the  bottom,  provided 
it  was  placeil  there  by  the  party  liinis'.lf, 
or  by  his  authority,  and  was  applicable  to 
the  whole  substance  of  thi-  writing.  (Cln- 
son  v.  Bailey, 14  Johns.  4sr>;  .Merrilt  r.  Cl«- 
son,  12  id.  lU(i,  1(17.)  Thus  tin-  law  stood 
at  the  time  of  the  revision.  The  revisers, 
in  their  notes  t<>  the  SHi  section  of  the  1st 
title  of  the  chapter  of  frauds  as  reported 
by  them,  say  it  had  been  hehl,  under  the 
former  statute  of  frauds,  "  that  the  literal 
act  of  signing  is  not  necessary,  althougb 
the  statute  speaks  of  'signinn.'  After  set- 
ting out  with  this  principle,  the  courts 
found  themselves  perfectly  at  large  ns  to 
what  should  be  considered  a  sigiiin)2.  To 
prevent  dilticulties  of  this  sort  hereafter, 
the  revisers  propose  to  require  that  these 
agreements  shall  be  subscribed."  The  re- 
visers, at  the  end  of  the  :5il  section  of  the 
2d  title,  which  relates  to  contracts  for 
the  sale  of  goods,  and  in  which  they  also 
substituteil  the  word  "subscribed  "  for  the 
word  "signed."  refer  to  their  notes  to  the 
preceding  sections.  The  note  to  the  Nth 
section  of  the  1st  title  is  a  plain  e.xpres- 
sion  of  their  understanding  of  the  mean- 
ing of  the  word  "subscribed;"  and  a  ch'sr 
manifestation  of  their  intention  in  recom- 
mending its  substitution  for  the  word 
"signed,"  It  is  perfectly  clear  from  the 
note  of  Hie  revisers,  that  they  Inteinled  by 
the  word  "subscribed,"  to  reipiire  the 
manual  signing  of  the  agreement  at  the 
end  thereof,  by  the  party  to  be  charged. 
When  the  members  of  the  legislature 
passed  upon  the  sections  of  the  chapter  of 
frauils  as  rejiorted  by  the  revisers,  they 
liad  their  notes  before  them,  detlning  the 
meaning  of  the  word  "subscribed."  and  in 
substance  declaring  that  the  adi^ption  of 
that  word  would  require  an  actual,  man- 
ual, subscription  nt  the  end  of  the  note  or 
memoranduin  of  the  contract.  The  legls- 
latureuniler  these  circumstances  retainbiK 
the  word  "suliscribed,  "as  (iroposed  by  the 
revisers,  must  be  understood  to  have  done 
so,  for  the  purpose  of  requiring  an  actual 
signing  in  writing  of  the  agreement  or 
memorandum  thereof,  underneath  the 
same.  We  cannot  now  so  construe  these 
sections  of  tlie  chapter  of  frauds,  as  to 
dispense  with  the  necessity  of  an  actual 
subscription,  without  disregarding  tho 
plainly  declared  will  of  the  legislature. 
It  is  tiie  olllce  of  the  courts  to  administer 
the  law  as  the  legisbiture  has  (b-clareU 
it;  not  to  alter  the  la w  by  means  of  con- 
struction. In  order  to  remedy  an  evil  or  In- 
convenience resulting  from  a  fair  Inter- 
pretation of  the  law.  The  etymology  and 
delinition  of  the  word  subscribe,  as  given 
by  lexicographers,  show  that  its  meanins 
w-lieii  a|iplied  to  the  signature  to  an  In- 
strument In  writing,  ns  understood  by 
men  of  letters,  is  tlie  signature  or  wrltlnji 
of  one's  name  lieneath  or  at  the  end  of  'he 
Instrument.     This  i.s  also   its   iiopiilnr  slg- 


470 


JAMES  V.  PATTEN. 


nification.  I  am  aware  that  the  popular 
meaning  of  the  word  "signed,"  when  ap- 
plied to  a  contract  or  other  instrument, 
is  generally  writing  one's  name  at  the 
bottom;  and  tliat  tliis  is  sometimes  its 
literar.v  meaning.  lUit  this  is  not  so  em- 
phatically and  universally  its  meaning,  as 
it  is  the  meaning  of  the  word  "subscril)ed.  " 
The  derivation  of  that  word  from  the  Lat- 
in word  subscribo,  shows  that  literally 
Hud  according  to  its  derivation  its  mean- 
ing is  "  to  write  under."  or  "underneatli." 
But  this  is  not  the  primary  or  derivative 
meaning  of  the  vert>  "to  sign."  Such 
meaning  is,  to  write  one's  name  on  paper 
or  to  show  or  declare  assent  or  attesta- 
tion b.v  some  sign  or  mark. 

I  concede  we  are  not  always  in  the  con- 
struction of  a  statute  to  be  controlled  b.v 
the  literary  signification  of  words,  or  their 
primar.v  or  derivative  sense;  and  that 
w  here  they  have  not  by  long  habitual  con- 
struction received  a  peculiar  or  technical 
meaning,  they  are  t(>  receive  their  natural 
and  ordinary  signification.  (Wain  v. 
VVarlters,  5  East.  10.) 

In  all  cases,  tlie  intention  of  the  law- 
maker in  using  the  words  is  to  be  sought 
after,  and  when  that  is  ascertained,  it 
must  be  followed  with  reason  and  discre- 
tion in  the  construction  of  the  statute. 
Wherever  any  words  are  obscure  or 
doubtful,  the  intention  of  the  legislature 
must  be  resorted  to,  in  order  to  find  their 
meaning.  ( Bac.  .\br.,  Stat.  1,  5.)  In 
the  revision  of  the  statute  of  frauds,  no 
motive  can  be  assigned  for  rejecting  a 
word,  the  legal  meaning  of  wliich  had  been 
established  by  a  long  lineof adjndications, 
and  substituting  another,  which  had  nev- 
er received  a  judicial  interpretation,  but 
which  had  a  known  limited  meaning;  un- 
less it  was  to  change  the  law  or  the  con- 
struction of  the  statute,  so  as  to  require 
an  actual  signing  of  the  name  of  the  par- 
ty at  the  end  of  the  contract  or  of  the 
memorandum  thereof,  although  in  com- 
mon parlance  the  word  "signed"  in  refer- 
ence to  a  contract  or  other  instrument  in 
writing  is  generall.v  understood  as  a  writ- 
ing of  the  name  at  the  bottom  ;  yet  now, 
neither  in  its  ordinary  orlegal  use  is  itcon- 
fined  to  that  office;  but  the  word  "sub- 
scribed,"  in  its  habitual  use,  and  accord- 
ing to  both  its  popular  and  literary  sig- 
nification, is  limited  to  a  signature  at  the 
end  of  a  printed  or  written  instrument.  It 
has  a  secondary  meaning,  but  that  is 
purely  metaphorical,  denoting  assent, 
without  reference  to  any  mode  of  express- 
ing it  by  actual  writing.  It  seems  to  me, 
therefore,  that  the  legislature,  by  the  sub- 
stitution of  the  word  "subscribed  "  for  the 
word  "signed,"  intended  a  change  in  sub- 
stance of  the  statute  of  frauds,  and  to  at- 
tain a  greater  degree  of  certainty  in  con- 
tracts, b.v  requiring  an  authentication,  by 
an  actual  subscription  of  the  contract  or 
of  the  memorandum  thereof,  by  the  party 
to  be  charged  or  liis  lawful  agent.  This 
alteration  is  more  than  a  verbal  one,  or  a 
mere  change  of  phraseology.  It  is  an  al- 
teration in  substance;  the  rejection  of  a 
word,  which  by  u'.eaiis  of  judicial  inter- 
pretation, had  an  extensive  legal  signifi- 
cation; and  the  adoption  of  anotherin  its 
place  niiicli  had    iu  its  (lopular  and  litera- 


ry use,  and  according  to  the  general  pop- 
ular understanding,  a  known  limited 
meaning.  According  to  the  familiar  rules 
of  construction,  this  substituted  woi'd 
must  receive  its  natural  and  ordinary  sig- 
nification. (.5  East, 17;  Bac.  Abr.,  Stat.  1, 
2.)  And  if  that  is  accorded  to  it,  the  con- 
tract or  memorandum  must  now  be  au- 
thenticated by  a  manual  signature  at  the 
end.  In  neither  a  popular,  literary  or  le- 
gal sense,  are  the  wonls  "signed"  and 
"subscribed"  synonymous,  or  of  equiva- 
lent meaning.  In  the  case  of  Merritt  v. 
Clason  (12  .lolins.  102),  it  was  conceded  by 
the  eminent  counsel  who  argued  that  case, 
that  there  was  a  plain  distinction  between 
signing  and  subscribing. 

Mr.  Wells  sa.vs  "signing  does  not  ex  vi 
termini  mean  that  the  name  of  the  party 
should  be  subscribed."  Mr.  D.  B.  Ogden 
replies,  "I  do  not  sa.v  that  the  agreement 
must  be  subscribed,  but  that  it  must  be 
signed  in  some  part  of  the  contract." 

I  do  not  think  that  all  the  foregoing  ar- 
guments can  be  overthi'own  by  the  mere 
circuin>^tance  that  the  legislature  in  the 
chapter  in  relation  to  wills,  from  abundant 
and  unnecessar.v  caution,  added  to  the 
provision  requiring  the  will  to  he  suh- 
scribel  by  tlie  testator,  the  words,  "at  the 
end  of  the  will."  The  chapter  in  relation 
to  wills  was  acted  upon  previous  to  the 
enactment  of  the  chapter  in  relation  to 
fraudulent  conve.vances  and  contracts. 
When  the  latter  chapter  was  examined 
and  passed,  the  legislature  had  the  uotcs 
of  the  revisers  before  them  which  ex- 
plained the  distinction  between  the  words 
signed  and  subscribed  ;  and.  I  think,  we 
must  presume  that  the  word  "subscribed" 
was  adopted  in  reference  to  its  meaning 
as  defined  by  the  revisers. 

This  question  was  expressl.v  determined 
by   the  court   of  errors  iu  Davis  v.  Shields 
(20  Wend.  311),  and  is,  therefore,  no   long- 
er open   for  debate.     In   that  case  it  was 
elaborately    and     learnedl.v    discussed    by 
the  late  chancellor  and    by  Senator  Ver- 
planck,  and  both  of  them  came  to  (hecon- 
clusion    that   the   word   "subscrilied,"   as 
i  used   in  the  statute  of  frauds,  requires  an 
actual   signing  in    writing  of  the  name  ol 
I  the   i)arty  who   is  to  make  a  sale  of  an  in- 
'  terest   in  lands  or  to  be  charged  by  a  con- 
tract  for   the  sale  of  goods,  at  the  end  of 
the  contract  or  of  the  memorandum  there- 
of.    The    ground    on    which    the    binding 
force  of  this  <lecision  is  sought  to  be  evad- 
ed or  overthrown  is,  in    my  judgment,  un- 
sound.    The   argument   is,  that  inasmuch 
j  as  ('hancellor  Walworth  and  Senator  Ver- 
planck   examined    two   questions   in  that 
cause:     1.  Whether  as   the   memorandum 
of  the   broker,    varied   from    the  contract 
j  made  by  the  parties,  there  was  a  contract 
1  liinding  on  either   party;  and   2.  Whether 
I  the  word  "subscribed"  retpiired   an   actu- 
al signing   of  the  name  of  the  party  tcj  he 
charged    at    the  end   of  the  contract   or 
memorandum;  and  as  all  the   other  mem- 
bers of  the  court  with  one  exception  voted 
silently  with  them  to  reverse thejudgment 
I  of  the  supreme  court,  that  it  is  impossible 
to  discover  on  which  of  the  two  questicms 
a  majorit.v  of  the   court  voted  for  such  re- 
versal;   although    Chancellor     Walworth 
!  and    Senator  Verplanck  agreed   that  both 


i 


JAMES  o.  PATTEN. 


471 


of  the  questionB  were  erroneously  decided 
by  the  Hupreme  court. 

If  this  arKumeiit  is  to  prevuil,  it  will  un- 
settle a  great  portion  of  our  law,  which, 
by  universal  c.msent.haH  lieen  retjarded  as 
definitely  e.stalilished.  If  in  a  caHe  like 
that  of  Davis  V.  Shields.it  is  held  that 
no  point  of  law  was  decided,  then  no  case 
id  authority  for  any  purpose  which  is 
decided  by  a  court  consistint;  of  more  than 
one  judge,  where  one  inemtjer  of  the  court 
only  delivers  a  written  opinion,  disposing 
of  several  questions  il  is  tinctly  arising  in  tile 
cause,  the  decision  of  each  of  which  is  fatal 
to  the  recovery  or  defense,  and  the  other 
memhers  of  the  court  concur  without  re- 
spectively declaring  their  individual  views 
in  regard  to  any  of  tlie  questions  discussed 
in  such  opinion.  Such  a  doctrine  is  op- 
posed to  the  general  understanding  of  the 
bar,  and  to  the  uniform  practice  of  the 
courts  in  recognizing  such  cases  as  binding 
authority  as  to  all  the  questions  which 
legitimately  arose  in  the  cause,  and  were  | 
passed  upon  l)y  the  judge  who  delivered 
the  written  opinion.  Where  a  c(jurt  con- 
sists of  several  judges  two  or  more  of 
wlioai  deliver  opinions,  and  all  arrive  at 
the  same  general  result  in  the  cause,  but 
for  different  reasons,  and  the  residue  of 
the  judges  give  a  silent  vote  of  concurrence 
with  tliera,  in  a  decision  for  the  one  par- 
ty or  the  other;  there,  as  it  does  not  ap- 
pear that  a  majority  of  the  court  agreed 
as  to  any  one  question  in  particular  as 
the  ground  of  tlie  decision,  thecasecannot 
be  considered  as  authority  on  any  of  the 
questions  which  arose  in  the  cause.  But 
where  several  questions  arise  in  the  cause, 
and  the  opinions  delivered  agree  in  regard 
to  all  of  them,  and  the  other  meml)ers  of 
the  court  give  a  silent  vote  of  concurrence, 
there  all  the  questions  will  be  deemed  to 


have  been  determined  by  a  majority  of  the 
court,  and  the  case  will  be  reganled  and 
respected  as  an  authoritative  adjudica- 
tion <jf  ull  such  questions. 

It  has  been  In-ld  by  several  of  the  coortH 
of  this  state  that  the  case  of  Davis  v. 
Shields  (20  Wend.  3J1),  expressly  deter- 
mined that  the  word  "Buliscribed  "  In  the 
chapter  of  the  Revised  Statutesln  relation 
to  fraudulent  conveyances  and  contriicts, 
called  for  an  actual  subscription  of  the 
name  of  the  party  at  the  end  of  the  con- 
tract. Chancellor  W'alworth  so  held  In 
Coles  v.  Bowne  (10  I'alge.  ."k!?),  and  in 
Champlin  v.  Parish  (11  id.  410,  411),  and  a 
like  decision  was  made  by  the  supreme 
court  for  the  fourth  district  in  Viele  v. 
Osgood  (8  Barb.  134).  As  a  member  of 
the  senate,  I  took  a  part  In  the  decision  of 
the  case  of  Davis  v.  Shields,  and,  at  the 
time  that  cause  was  decided,  I  had  no 
doubt,  nor  have  I  any  now,  that  a  major- 
ity of  the  court,  in  voting  for  a  reversal  of 
the  judgment  of  the  supreme  court,  con- 
curred with  Chancellor  Walworth  and 
Senator  Verplanck,  as  to  both  of  the  ques- 
tions discussed  in  their  opinions.  I  dis- 
sented from  the  opinion  of  the  majority  of 
the  court  on  the  ground  that  the  legisla- 
ture, by  substituting  the  word  "sul)- 
scribed"  for  the  word  "signed,"  useil  In 
the  former  statute  of  frauils,  did  not  in- 
tend to  change  the  la  w.  From  my  pres- 
ent examination  of  this  question.  1  am 
satisfied  that  I  was  mistaken  In  the  opin- 
ion 1  then  expressed. 

I  am  of  opinion  thatthe  judgment  of  the 
supreme  court  should  be  reversed  and  a 
new  trial  granted. 

(lARDINER,  .T.,  also  deliverid   an  opin- 
ion in  favor  of  reversing  the  judgment. 
.Tudgment  reversed. 


JENXEFt  V.  SMITH. 


473 


JENNER  V.  SMITH. 

(L.  R.  4  C.  P.  270.) 

Common  Pleas.    April  30,  1869. 

Action  for  koucIh  bar;>:iiinpil  imd  Hold 
and  goods  sold  nnd  delivered.  Fledw: 
Never  inilelited,  pu.vnieiit,  and  payment 
ofSH.  2d.  into  c(»urf.  lU'ijlicatioii,  taking 
is.Hiie,  and  daniageH  nltra. 

TliecauHe  waw  trieil  before  Brett,  J.,  at 
the  Kittingn  at  WestmiiiHter  after  lai^t 
Michaelniii.s  term.  The  facts  were  an  fol- 
lows: On  the  Nth  of  C>cti)l)er.  lsc,7,  the 
plaintiff,  who  is  a  liop-nierchant  in  Lon- 
don, in'.'t  the  defendant,  a  maltster  of  De- 
vizes, at  We.vhill  Fair,  Hants.  The  de- 
fendant wished  to  bny  of  the  plaintiff  four 
pocl<ets  of  Carpenter's  Siisse.v  hoi)s  which, 
the  plaintiff  had  there;  Imt,  as  the  i»laln- 
tiff  had  already  sold  two  of  them,  he  pro- 
posed to  sell  the  defendant  in  lieu  of  tlieni 
two  pockets  of  Thorpe's,  of  which  he 
showed  him  a  sample,  offering  to  let  the 
defendant  have  the  two  pockets  of  Car- 
penter's at  £9  [ler  c\\  t.  (the  |)rice  of  that 
day's  fair  lieiiig  £'.>  Ds.),  if  he  would  take 
two  pockets  of  Thorpe's  at  £7  l.")s.  per 
cwt.  The  iilaintiff  at  the  same  time  or 
shortly  jifter  informed  the  defendant  that 
the  last-MientiiMied  two  pockets  were  ly- 
ing at  Prid  iV:  Sou's  warehouse,  Kentish 
ISnildings,  .Sontluvark,  aijil  agreed  that 
he  should  have  them  upon  the  same  terms 
as  if  they  had  been  in  linlk  at  the  fair,  that 
is,  that  lie  should  he  at  no  e.xpense  for 
wareliousiiig  or  carriage.  The  defendant 
consented  to  purchase  tlie  four  pockets 
upon  these  terms,  and  took  away  with 
him  the  t%vo  pockets  of  (Jarpeuter's,  but 
reipiested  that  thetwopocketsof  Thorpe's 
should  not  be  sent  until  he  wrote  for  them. 

The  plaintiff  had  at  this  tinicthree pock- 
ets of  Thorpe's  hops  at  the  warehouse  of 
Prid  &  Son.  On  the 'Jlst  of  October,  the 
plaintiff's  son  went  to  the  warehonse,and 
insti'ucted  the  warehouseman  to  set 
apart  two  of  the  three  pockets  of  Thorpe's 
for  the  defendant;  and  the  warehouse- 
man thereupon  placed  on  two  of  them, 
numbered  respectively  one  and  three, 
what  is  called  a  "  wait  order  card,"  that 
is,  a  card  upon  which  was  written,  "To 
wait  orders."  and  the  name  of  the  ven- 
dee. No  alteration,  however,  was  made 
in  the  warehousebooks :  ;ind  the  plaintiff, 
the  original  depositor,  still  remained  lia- 
ble for  the  rent. 

On  (he  4th  of  November,  the  plaintiff 
sent  the  defendant  an  invoice  as  follows, 
at  the  same  time  inclosing  a  draft  for  ac- 
ceptance:— 

Mr.  S.  .><mllh.     nouKht  olCtinrleB  Jennen 
2  pockets  SnsHi'T  Imps  (CnrpiMiter,  ISii7), 
No.  2   ...    1  cwt.  2  qrs.  2li  Urn. 
4  ...  1  cwt.  2  qrs.  l;l  lbs. 


Scwt.lqr.    II  11)8.  «i)X9  percwt.  MO    2s.   8(1. 
}  pockots  Sussi'X  hops  (Thorpo,  IS67), 
No.l  .  .  .   1  cwt.2  qr«.271bs. 
8  ...  1  i-wt  ciqr.  21  lbs. 

2  cwt .  3 qrs.  20  lbs.  6i  f  713a.  percw t.  £22 13a.  lod. 

I.VJ  IGa.  8(1. 
The  two  Inst  pockets  of  hops  are  I.vinff  to  your  order. 

OntheSth  of   November   the   defendant 
wrote  to  the  plaintiff  as  follows:— 


Sir,— 1  have  returned  your  bill  unsigned; 
but.  as  I  have  never  received  the  two 
pockets  of  hops  or  heard  any  thing  about 
them,  1  crjnrluded  you  had  not  thought  of 
Keniling  them,  and  have  made  an  exchange 
for  some  malt,  nnd  shall  not  re(|uire  them. 
As  1  will  never  sign  a  bill.  I  will  pay,  as 
was  agreed,  in  February,  the  welghtof  the 
two  Carpenter's. 

The  defendant  subsequently  pniil  the 
price  of  the  two  jjockcts  which  he  had  re- 
ceived, all  but  a  small  balance  which  was 
covered  by  the  payment  into  court. 

It  was  (jbjcctcd  on  the  part  of  the  de- 
fendant tliat,  as  to  the  two  pockets  of 
Thorpe's  h(»ps,  there  was  no  contract 
binding  within  the  statute  of  frauds,  no 
delivery  or  acceptance,  or  part  payment, 
and  no  evidence  of  goods  bargained  and 
sold. 

For  the  plaintiff  it  was  insisted  that  the 
whole  was  one  bargain,  and  consequently 
that  there  had  been  a  part  delivery  and 
p.-irt  payment,  and  that  the  properly  In 
the  wlnde  four  pockets  passed  by  the  con- 
tract. 

The  learned  judge  ruled  that  It  was  one 
entire  contraci,  and  that,  therefore,  there 
had  been  a  part  delivery  so  as  to  make  n 
contract  binding  within  the  statute  of 
frauds,  that  the  plaintiff  could  not  rely 
upon  the  [lart  |iayment,  liecause  the  ite- 
fendant,  at  the  lime  of  making  the  pay- 
ment. re|)U(liated  the  bargain  as  to  the 
two  pockets  in  (|uestion;  that,  though 
there  was  a  binding  contract,  the  prop- 
erty did  not  pass  thereby,  inasmuch  as  the 
contract  was  to  deliver  two  out  of  a 
larger  numberof  pockets  of  Thorpe's  hops 
equal  to  sample,  the  [irice  to  be  deter- 
mined according  to  the  weight;  and  that 
there  had  been  no  siillicient  appropriation 
afterwards  to  pass  the  property,  because 
Prid  &  .Son  never  bound  themselves  to 
hold  for  the  defendant  instead  of  for  the 
plaintiff.  lie  t!u'reiii)on  nonsuited  the 
Iilaintiff,  reserving  liim  leave  to  move  to 
enter  a  verdict  for  £'J2  Ills.  lOd.,  the  court 
to  draw  inferences  of  fact. 

Morgan  Lloyd,  in  Hilary  term  last,  ob- 
tained a  rule  nisi  accordingly.  H.T.  Cole, 
(J.  C,  and  Bromley  showed  cause.  .Mor- 
gan Lloyd,  in  suiiport  of  the  rule. 

KEATING,  .1.  I  am  of  opinion  that 
this  rule  should  be  discharged.  The  ac- 
tion is  brought  to  recover  the  price  of 
two  pockets  of  hops  as  sold  and  ilelivereil 
and  bargained  and  sold.  It  appears  that 
the  iiarties  met  in  October,  lsc.7,  at  Wey- 
liill  Fair,  and  that  it  was  orally  agreed 
between  them  that  the  defendant  should 
purchase  of  the  plaintiff  twi>  pockets  of 
Carpenter's  Sussex  Imps,  which  were  then 
in  the  fair,  and  had  l>een  Inspecli'd  liy  the 
defendant,  at  £!•  per  cwt.,  and  >ilso  two 
pockets  of  Thorpe's  hops,  of  which  a  sam- 
ple was  shown,  at  £7  l.')s.  per  cwt.  After 
the  purchase  had  lieeii  agreed  on,  the  de- 
fendant was  informed  that  thelatler  were 
Iviiig  in  a  warehouse  in  London,  and  he 
reiiiiesteil  that  I  hey  might  be  left  therw 
until  he  sent  word  that  he  was  ready  to 
receive  them.  On  the  4th  of  November  the 
[)laintiff   sent    an    invoice    describing    the 


474 


JENNER  0.  SMITH. 


numbers,  weight,  and  price  of  the  four 
pockets,  with  an  intimation  that  the  two 
pockets  of  Thorpe's  were  l.ving  at  the 
wareliouse  to  the  defendant's  orders.  The 
plaintiff  had  tliree  jjockets  of  Thorpe's 
hops  nt  tlie  warehouse;  and  lie  had  in  tlie 
mean  time  gone  to  the  wareliouse  and 
directed  the  wareliouse  keeper  to  put  cer- 
tain marks  upon  two  of  them,  to  indicate 
that  they  were  sold  and  were  to  wait  the 
orders  of  the  purchaser.  No  alteration, 
however,  was  made  in  the  books  of  the 
warehouse-keeper;  nor  was  any  intima- 
tion of  this  appropriation  of  tlie  two 
pockets  Kiven  to  the  defendant  until  the 
4th  of  Novenilier,  when  the  invoice  was 
forwarded  to  liim.  The  defendant  declined 
to  accejjt  the  two  pockets.  At  the  trial 
various  objections  were  urged.  It  was 
BHid,  amongst  other  things,  that  there 
was  no  contract  as  to  the  two  pockets  of 
Thorpe's  hops  to  hind  the  defendant  with- 
in §  17  of  the  statute  of  frauds;  that  the 
contracts  for  the  purchase  of  the  two  pock- 
ets oi  Carpenter's  hops  and  for  the  two 
pockets  of  Thorpe's  were  di.stinct  con- 
tracts; and  that,  consequently,  there  had 
been  no  delivery  or  part-payment  to  take 
the  case  out  of  the  statute.  My  brother 
Brett  ruled  that  the  contract  was  entire, 
and  the  olijection  founded  upon  the 
statute  of  frauds  was  thus  got  rid  of. 
Then  came  the  question  whether  the 
count  for  goods  sold  and  delivered  or 
goods  bargained  and  sold  could  be  main- 
tained, the  property  in  thegoods  not  hav- 
ing passed.  Upon  this  my  brother  Brett 
noiisuited  the  plaintiff,  but  gave  leave  to 
move  to  enter  a  verdict  for  the  jjlaintitf 
lor  the  price  of  the  two  pockets  in  dis- 
pute, reserving  power  to  the  court  to 
draw  such  inferences  as  a  jury  might 
draw.  The  question  before  ns,  therefore 
is,  whether,  ui)on  the  facts  proved,  we  can 
see  that  the  property  in  the  hops  passed 
to  the  defendant  so  as  to  make  him  liable 
in  this  action.  The  general  rule  of  law 
was  not  contested  on  the  part  of  the 
plaintiff,  that,  where  an  article  (not  spe- 
cific) is  sold,  but  something  remains  to  be 
d»)ne  by  the  vendor  before  it  is  despatched 
to  the  vendee,  no  projierty  passes  by  the 
contract  of  sale.  It  was  contended  on 
the  part  of  the  defendant  that  much  re- 
mained to  be  done  here  before  the  prop- 
erty could  pass, — that,  the  hops  having 
lieen  sold  by  samjile,  they  would  require 
to  be  inspected,  and  to  be  weighed,  in  or- 
der to  ascertain  the  price.  On  the  other 
hand  it  was  urged  that,  though  that  may 
be  so  as  a  general  rule,  Aldridge  v.  John- 
Koni  and  other  cases  show  that,  if  it  ap- 
pears from  the  contract  that  the  vendee 
has  made  the  vendor  his  agent  for  the 
purpose  of  weighing  and  doing  all  the 
other  acts  necessary  to  be  done  to  pass 
the  property,  the  property  in  the  goods 
will  pass  so  soon  as  those  acts  are  done. 
It  is,  however,  observalde  that  in  Al- 
dridge V.  .lohnson  the  bulk  of  the  barley 
had  been  inspected  and  approved,  and 
all  that  remained  to  he  done  was  to  sever 
and  measure  the  portion  to  be  appro- 
priated  to   the  vendee:  and  that  the  ven- 


dor had  filled  a  number  of  sacks  which  had 
been  sent  by   the   vendee,  thereby  measur- 
ing it.     The  barley  which    was    to   be  ap- 
propriated  to   the  fultilineiit   of  the  con- 
tract was  therefore  severed   from  the  bulk 
and    measured    with    the   assent   of   both 
parties.     There  could    be   no   doubt   that 
the   property   in    the  l)ailcy  so  dealt  with 
passed.     Mr.  Lloyd   sought    to   bring  the 
present  case  within  that  l>y  saying  that  a 
similar  extensive  auchorify  was  conferred 
by  the  defendant  on   the   plaintiff  in   this 
case.     I   cannot   draw  any  such   inference 
from    the   facts   proved    here:    on  the  con- 
trary, I  think  they  negative   it.     I  cannot 
suppose  that  the  defendant  meant  to  part 
witli   tiie   right   of  objecting  to  the  corre- 
spondence of  the   hops    with    the   sample, 
or  of   insisting  on  the  weight  being  ascer- 
tained, before   the   pro|)erty  passed.     It  is 
true,  there  was  an  intimation  tothe  ware- 
house-keeper that  the   two   pockets  num- 
bered one  and  three  liad  tieen  sold   to   the  i 
defendant;  but  no  transfer    was   made  in 
his  books,  and  he  still   held    them    at    the! 
charge  and  at  the   risk    of   the   vendor.     I 
think    it   is  impossible    for    the    court   to) 
draw    the    inference    that    an     authority! 
such  as  was  given  in  Aldridge  v.  .Johnson*  I 
was   given  here;  and  if  no  such  authority  ■ 
was  given,  the  case  is  brought  within  the] 
multitude   of  authorities   in    which  it  haa  •• 
been  held    that,  where   there   is   a   sale  of'| 
unascertained     goods    with    reference    to 
which   something   remains   to  be  done  by 
the  vendor  before  delivery    to  the   \endee, 
no   property  passes   until  that   has   been 
done. 

BRETT,  .T.     At   the   trial  1  proposed  to 
nonsuit  the  plaintiff,  on  the  ground    that 
there  was  no  evidence  to  go  to  the  jury  in 
supp(jrt  of  the  count   for  goods  l)argained 
and  sold.    It  was  not  then  suggested  that  | 
there   was  any  authority  from  the  defend- 
ant to  the  plaintiff  to  select  the  two  pock-  I 
ets  for  him.     If  it  had  l)een,    I   should   not  ' 
have  nonsuited    the    plaintiff,  but    would 
have  left  that   question    to  the  jury.     The-] 
question  now  is,  not    whether   there   was 
any  evidence  for  the  jury,  but  whether  the 
court    can    infer    from  the    facts   proved, 
that   the  propert.v  in  the   two  pockets   ofj 
Thorpe's  passed.    It  is  clear  that  no  prop- 
erty passed    by   the  contract   itself.     The  | 
contract  was  for  a  sale  bj'  sample  of  unas- 
certained hops,  the  price  depending  on  the  , 
weight.     Then   comes  the  case  put   by  my  | 
brother   Blackburn   in   the   passage  at  p. 
127,  to  which  I  referred  in  the  course  of  the  I 
argument.     Here  there    was   no    previous  I 
authoritj'  given    to  the  plaintiff  to  appro-] 
priate;  and.   if   not,   what    evidence   was 
there  to   show    that  the  appropriation   of  | 
the   two    pockets    in  Prid   &   Son's  ware- 
house was  ever  assented  to  by  the  defend- 
ant'?    The  defendant's  assent  might  liave] 
been  given  in  eitheroftwo  ways, — by  him- 
self, or  by  an    authorized  agent.     I!y  him- 
self, after  the  receipt  of  the  letter  contain-] 
ing  the   invoice;     or    by    the    warehouse- 
keepers,  if  there  had    been   any  evidence  ofj 
agency   or   autliority  in    them    to   accept, ! 
and  assent  liy  tliem  to  hold   ihe  hops  fori 


I 


>7  K.  &  K.  hsr);  26  I..  J.  (Q.  li.)  iOfi. 


I      '7  E.  &  li.  !>»5:  aO  L.  J.  (Q.  B.;  296. 


JEXXER  V.  SMITH 


475 


liitn.  I  tliink  tlie  di'fendant'H  Iptter  refuH- 
iiiK  to  (i''<'<'i)t  till'  ilrnft  WHS  Htroiig,  if  not 
cKiicliiHivp,  to  hIiow  that  there  had  heeii 
no  such  awHeTit  l».v  tlic  defcrulaiit.  And.  nn 
to  I'rid  iV  Son,  the  evidence  failn  on  Itoth 
pointH.  They  never  nj;i-eed  to  h<j|d  tlie 
two  poeketH  on  lielialf  of  tlio  purehnHer ; 
and,  if  tliey  (li<l,  tlieie  Ih  no  evidence  of 
any  autliority  from  liiin  that  they  iniKlic 
do  HO.  Mr.  I^loyd  lia.s  stronsly  |)ut  for- 
ward a  point  wliicli  waH  not  made  at  tlie 
trial,  viz.,  tlial  tlieie  wasevidence  tlia  t,  l)y 
agreement  between  tlie  parties,  the  pnr- 
cliawer  }j;ave  aiithoi-ity  to  the  Heller  to  He- 
lect  the  two  pocketH  for  him.     If  he  did  80, 


he  Kave  u|)  liin  power  to  object  to  the 
weiKliInK  anil  to  the  koihIh  not  corre- 
MpondluK  with  tlie  Nainiile;  for  he  c«)iilil 
not  tive  huiIi  anthority  and  renerve  liiH 
ri^ht  HO  to  ohjei't :  and  itiileeil  It  huH  not 
been  contendi'd  that  hi'  nave  up  tliime 
ri^htH.  That  kcciiih  to  me  to  he  conelu- 
Hive  to  Hhow  that  the  ilelendant  never 
Kave  the  plaintiff  aiitlioilty  to  niiike  the 
Ki'lection  HO  aH  to  hind  him.  t'lider  the 
eirciiniHtanceH,  therefore,  it  Ih  inipoHHilde 
to  Ha.v  that  the  property  panHcd  ;  conMe- 
qiiently  the  t>laintlff  cannot  recover  oh  for 
^ooiIh  harKained  and  Hold. 
Rule  dlHciiargeU. 


\ 


JOHNSTON  V.  TRASK. 


477 


JOHNSTON  V.  TRASK  et  al. 

(22  N.  E,  Rep.  877,  116  N.  Y.  136.) 

Court  of  Appeals  of  New  York,  Second  Division. 
Oct.  8,  18S9. 

Appeal  from  a  judgment  of  the  general 
term  of  the  su|iienie  court  in  the  third  juili- 
cial  department,  entered  on  an  order  made 
January  2(i,  lK8t),  which  allirnied  a  judg- 
ment in  favor  of  plaintiff,  entered  upon  a 
vpidict  directed  at  circuit. 

This  was  an  action  for  a  breach  of  con- 
tract. Since  January,  1882,  the  defend- 
ants have  heen  bankers  and  brokers,  doing 
busini'ss  as  partners  under  a  firm  name.  On 
the  trial  of  the  issues,  the  plaintiff  testilied 
that  on  the  18th  day  of  January,  1882,  the 
nian.iging  piirlner  of  the  firm,  at  its  place  of 
business,  orally  agreed  with  the  plaintiff  to 
purchase  for  him,  if  they  could  be  bought  in 
the  market,  income  mortgage  bonds  of  the 
Ohio  f'entral  Uailroml  iif  the  par  value  of 
810,000,  "and,  (giving  the  language  of  said 
partner)  any  time  you  want  to  get  rid  of 
them,  we  will  take  them  off  of  your  hands  al 
what  they  cost  you."  Later  in  the  day,  tlie 
defendants  reported  to  the  plaintilf  that  they 
had  purchased  the  bonds  for  §4,800,  and 
their  commissions  were  §12.50;  and  there- 
upon the  plaintitf  paid  .?1,000  towards  the 
purchase  price.  The  bonds  were  retained  by 
the  defendants  as  security  for  the  sums  due 
from  the  plaintiff  to  them  until  November 
16,  1882,  when  the  plaintiff  paid  the  f  idl  pur- 
chase price  for  the  bonds,  commissions,  and 
interest,  and  took  them  into  his  possession. 
The  market  price  of  the  bonds  declined  until 
April  28,  1884,  when  they  were  selling  for 
about  10  cents  on  a  dollar.  On  this  date  the 
plaintiff  tendered  the  bonds  to  the  defendants, 
and  demanded  that  tliey  should  pay  him  $4,- 
812.50,  which  tliey  refused  to  do;  and  .\pril  30, 
1884,  this  action  was  brought,  on  contract,  to 
recover  that  sum.  The  defendants  did  not 
contradict  the  plaintilf's  evidence,  which  was 
corroborated  by  three  witnesses;  but  at  the 
close  of  his  case  they  moved  for  a  nonsuit  on 
the  grounds— ^'i'/s?.  That  the  oral  contract 
was  void  for  not  comi)lyiiig  with  the  follow- 
ing section  of  the  statute  of  frauds:  "Sec.  3. 
Kvery  contract  for  the  sale  of  any  goods, 
chattels,  or  things  in  action,  for  the  price  of 
fifty  dollars  or  more,  shall  be  void,  unless 
(1)  a  note  or  memorandum  of  such  contract 
be  made  in  writing,  and  be  subscribed  by  the 
parties  to  be  charged  thereby;  or  (2)  unless 
tlie  buyer  shall  accept  and  receive  part  of 
such  goods,  or  the  evidences,  or  some  of 
them,  of  such  things  in  action;  or  (3)  unless 
the  buyer  shall,  at  the  time,  pay  some  part 
of  the  jiurchase  money."  Secuml.  That  the 
evidence  was  insullicient  to  sustain  the  con- 
clusion that  the  managing  partner  had  au- 
thority to  bind  the  firm  by  such  a  contract. 
Third.  That  the  plaintiff  did  not  tender  the 
bonds,  and  demand  the  repayment  of  the 
price,  within  a  reasonable  time,  and  thereby 
lost  his  right  of  action.     The  motion  was  de- 


nied, and,  the  defendant  not  asking  to  have 
any  question  submitted  to  the  jury,  a  verdict 
was  directed  in  favor  of  the  plaintiff  for 
$4,800,  with  interest  tbereon  from  April  28, 

1884. 

Horace  E.  Smith,  for  appellants.   John  if. 
Carroll,  for  respondent. 

FoLLETT,  C.  J.,  (after  stating  the  factt 
as  above.)  An  oral  contract  by  which  a  per- 
«on  sells  his  own  chattels  or  choses  in  action 
for  more  than  S50,  payment  and  delivery  be- 
ing made,  and  agrees  to  take  tliem  back 
from,  and  rei)ay  the  purcha.se  price  to,  the 
purchaser  on  demand,  is  an  entire  contract; 
and  the  promise  to  take  back  the  proi)erty, 
and  repay  the  purchase  price,  is  not  void  by 
the  third  section  of  the  statute  of  frauds. 
Wooster  v.  Sage,  67  N.  Y.  07;  Kit/patrick 
V.  Woodruff,  90  N.  Y.  5G1;  White  v.  Knapp, 
47  IJarh.  .'549;  Williams  v.  Burgess,  10  Adol. 
&  K.  499;  Fay  v.  Wheeler.  44  Vt.  292;  Dick- 
inson v.  Dickinson,  29  Conn.  600;  1  Uenj. 
Sales,  (Corliin's  Ed.)  §  169.  Executed  con- 
tracts of  sale,  embracing  a  promise  by  ven- 
dors of  chattels  that  in  case  they  do  not  suit 
the  purchaser,  or  do  not  possess  certain  speci- 
fied qualities,  the  vendor  will  repay  to  the 
vendee  the  purchivse  price  upon  their  return, 
have  been  frequently  cunsidcred  by  the  courts, 
(Towers  v.  IJanctti  1  Term  K.  133;  Thorn- 
ton v.  W\vnn,  12  Wheat.  183;)  but  no  case 
has  been  cited  holding  that  such  a  promise 
on  the  part  of  a  vendor  is  an  independent 
contract.  When  an  agent,  by  an  oral  con- 
tract, sells  anil  delivers  the  gootis  of  a  dis- 
closed princi|ial,  his  personal  oral  warranty 
of  quality  is  not  a  contract  independent  of 
the  contract  of  sale,  but  is  a  part  of  it,  and 
one  consideration  is  sutlicient  to  support  the 
sale  and  warranty.  The  oral  contract  of  the 
defendants  that  they  would  purchase  for  the 
plaintiff  in  the  market,  at  marki  t  rates,  the 
bonds,  for  the  usual  compensation,  and,  in 
case  he  should  thereafter  become  dissatislled 
with  the  bonds,  that  they  would,  on  demand, 
take  them  off  his  hands  at  what  they  cost 
him,  was  a  single  contract.  Under  this  con- 
tract, the  bonds  were  purchaseil  and  held  by 
the  defendants  until  the  purchiise  price  and 
their  commissions  were  paid,  and  then  they 
delivered  the  bonds  to  the  plaintiff.  The 
promise  of  the  defendants  that  they  would 
take  the  bonds  off  the  plaintiffs  li.-tnds  at 
what  they  cost  him,  upon  request,  is  not  a 
contract  for  the  sale  of  goods,  chattels,  or 
things  in  action,  within  the  third  section  of 
the  statute  of  frauds,  but  is  a  provision  for 
the  rescission  of  the  entire  contract,  and  Is 
valid.  The  learned  counsel  for  the  appellant, 
in  support  of  his  contention,  cites  Hagar  v. 
King.  38  liarb.  200.  In  that  case  a  firm  was 
iiulebted  to  the  plaintiffs  in  the  action  for 
woik  performed  in  constructing  pnrt  of  a 
railroad.  The  defendant,  who  was  one  of 
the  firm,  asked  the  plaintiffs  to  take  from  thi» 
railroad  corporation  its  bonds  in  payment  of 
the  debt,  orally  agreeing  with  the  plaintiffs. 


478 


JOHNSTON  V.  TRASK. 


for  himself,  that,  if  they  would  so  take  the 
bonds,  he  (not  the  firm)  would,  within  10 
days,  take  the  bonds  from  and  pay  to  the 
plaintiffs  the  amount  of  tlie  lirm's  debt.  The 
plaintiffs  assented  to  the  proposal.  After- 
wards they  accepted  from  the  corporation  its 
due-bill  for  the  amount  due  them  for  their 
work,  payable  in  the  bonds  of  the  corpora- 
tion, and  gave  a  receipt  for  all  of  their  de- 
mands for  work  done  on  the  road.  The 
plaintiffs  then  indorsed  the  due-bill,  deliv- 
ered it  to  the  corporation,  and  received  the 
boi  Is.  Within  10  days  the  plaintiffs  ten- 
dered the  bonds  to  the  defendant,  and  de- 
manded the  amount  for  which  they  were 
taken  in  payment.  It  was  held  that  the  oral 
agreement  embraced  two  contracts, — one  to 
accept  the  bonds  in  payment  of  the  debt, 
and  another  to  purchase  the  bonds  at  a  future 
day  at  a  given  price, — and  that  the  latter 
contract  was  within  the  third  section  of  the 
statute  of  frauds,  and  void.  That  case  is 
easily  distinguishable  from  the  one  at  bar. 
The  defendant  in  that  case,  as  an  individual, 
was  not  indebted  to  the  plaintiffs,  and  his 
individual  contract  to  take  back  the  bonds 
was  held  to  be  distinct  from  the  contract  by 
which  the  firm's  debt  was  paid  in  the  manner 
described. 

Was  the  evidence  sufficient  to  sustain  the 
conclusion  that  the  managing  partner  was 
authorized  to  make  the  contract  in  behalf  of 
the  firm?  The  defendants  admitted,  m  their 
answer,  that  they  were  bankers  and  brokers, 
and  that  they  entered  into  that  part  of  the 
contract  by  which  they  agreed  to  purchase 
the  bonds  for  the  plaintiff,  which,  by  their 
concession,  was  within  the  ordinary  business 
of  the  firm.  But  they  neither  averred  in 
their  answer,  nor  gave  evidence  tending  to 
show,  that  the  promise  to  take  back   the 


bonds  was  beyond  the  scope  of  their  business. 
There  being  no  evidence  which  shows  that 
the  transaction  was  actually  beyond  the 
scope  of  the  business  of  the  firm,  the  ques- 
tion arises  whether  it  was  apparently  beyond 
the  scope  of  its  business.  15ank  v.  Under- 
bill, 102  N.  Y.  336,  7  N.  E.  Rep.  293.  The 
case  shows  that,  in  addition  to  the  business 
usually  done  by  bankers  and  brokers,  the  de- 
fendants were  accustomed  to  purchase  and 
carry  securities  on  margins  for  their  custom- 
ers. The  undisputed  evidence  is  that  the 
managing  partner  did  make  the  promise  up- 
on which  the  plaintiff  recovered;  thus  assert- 
ing his  authority  to  make  it  in  the  name  and 
in  behalf  of  the  firm.  No  evidence  is  found 
in  the  record  which  would  justify  the  court 
in  holding,  as  a  matter  of  law,  that  the 
promise  upon  which  the  action  was  brought 
was  so  far  beyond  the  scope  of  the  business 
of  the  firm  that  the  plaintiff  had  no  right  to 
rely  upon  it.  The  evidence  was  sufficient  to 
cast  upon  the  defendants  the  burden  of  re- 
butting the  presumption  arising  from  the 
evidence  and  the  pleadings,  and,  they  having 
failed  to  do  this,  no  error  was  committed  in 
refusing  to  nonsuit  on  the  ground  that  the 
managing  partner  had  no  authority  to  bind 
the  firm  by  this  contract. 

The  third  ground  upon  which  a  nonsuit 
was  asked  for  is  not  supported  by  the  evi- 
dence. The  undisputed  evidence  is  that  the 
managing  partner  of  the  firm,  on  several  oc- 
casions, advised  the  plaintiff  not  to  part  with 
the  bonds,  assured  him  that  they  were  good, 
and  would  ultimately  advance  in  the  market. 
Under  these  circumstances  the  plaintiff  was 
not  guilty  of  laches  in  not  earlier  returning 
the  bonds,  and  demanding  the  price  paid. 
Wooster  v.  Sage,  supra.  The  judgment 
should  be  affirmed,  with  costs.     All  concur. 


n 


JONES  c.  EARL. 


481 


JONES  V.  EAUL. 

(37  Cal.   030.) 

Supreme  Court  of   California.    July,   1869. 

Appeul  from  the  district  court,  Bixtl) 
Juiii<'ial  (liHtrict,  Sicrameiitti  county. 

Tlic  jjctiiiii  WMg  njjaiii.st  a  torwunlcr  for 
the  conviTHion  of  ko<)<Ih.  The  roll()\vin<;  ' 
Is  a  copy  of  the  letter  wliich  is  ;eferre(I  to  i 
in  tlie  opinion  r)f  the  court  : 

"San  F"raucisco,  Noveniher  18tli,  lS(i7. 
MesHTM.  I).  W.  Earl  &  Co.:  Cents— On  the 
el?ventli  in'<tant  we  Hliipped  to  your  care 
the  rollowiuK  jjoods.  viz.:  Two  liarrcls 
whi.il\y.  Two  ca.sli.s  ale.  Two  caeks  por- 
ter. Four  liasketH  clianipa;rne.  Four 
casoH  Hostetter'H  bitterw.  .Marked:  F. 
M.  .\..  Viruinia  City,     (are  'Karl,'  (Mmco. 

"  If  the  >;o()(la  have  not  been  forwarded 
yet  ironi  Cisco,  please  hold  on  to  them  till 
you  hear  from  us  aK»in,  as  the  party  to 
wlicMn  they  were  consij^ned  at  VirKinia 
has  been  attached,  anil  we  want  to  save 
tlic  uoods.  If  they  have  been  forwanii-rl 
from  (i.sco,  please  instruct  your  agent  at 
Virginia  to  deliver  the  froods  to  no  one 
])Ut  our  agent,  Mr.  J.  A.  livers,  who  will 
be  at  Virginia  on  the  lookout  for  the 
goods.  Please  write  us  immediately 
whether  the  goods  have  been  sent;  if  not, 
Mr.  Hyers  will  call  for  tliein  at  Cisco. 
Very  respectfully.  Biggs  &  ,Jones." 

Coffroth  &  .Spf.ulding.for  appellant.  M. 
A.  Whuaton.  for  respondent. 

SANDER.SON,  .1.  StopP'ige  in  transitu 
is  n  right  which  the  vendor  of  goods  upon 
creilit  has  to  recall  them,  or  retake  them, 
upon  the  discovery  of  the  insolvency  of 
the  vendee,  before  the  goods  havecome  In- 
to his  possession,  or  any  third  party  has 
nc(|Uired  liona  fide  rights  in  them.  It  con- 
tinues HO  long  as  the  carrier  remainsin  the 
possession  and  control  of  the  goods,  or 
until  there  has  been  an  actual  orconstruc- 
tive  delivery  to  the  vendee,  or  eome  third 
I'lTson  has  acquired  a  bona  fide  right  to 
tlu'in.  Upon  demand  by  the  vendor, 
while  the  right  of  stop|>age  in  transitu 
continueK,  the  carrier  will  l)ec<irao  lial)le 
for  a  conversion  of  the  goods,  if  he  decline 
to  redeliver  them  to  the  vendor,  or  deliv- 
ers them  to  the  vendee.  (MarkwalU  v. 
His  Creditors.  7  Cal.  l.'l:!:  HlacUman  v. 
I'ierce,  i':!  Cal.  ,5l)s:  O'Neil  v.  (Jarrett,  fi 
Iowa.  4n0;  IJeynolds  v.  Railroad,  43  N.  H. 
LAW  SALES — 31 


5S0.)  And  a  notice  l)y  the  vendor,  wlthoot 
an  express  demand  to  leileliver  the  gnoda, 
is  sufficient  to  charge  the  carrier.  lithe 
carrier  is  clearly  informed  that  It  Is  the  in- 
tention and  desiri'  ol  the  vendor  to  exer- 
cise his  right  ol  stoppage  in  transitu,  the- 
notice  is  sntlicient.  (licyu<dds  v.  HallroaiU 
supra;  Eitt  v.  Cowley",  7  Taunton,  KiU; 
Whitehead  V.  AmIersou.O  .M.  &\V..-)1K;  Bell 
V.  .Moss,  5  Wharton,  l*-!).)  .And  notice  U^ 
the  agent  of  the  carrier,  wIkj  in  the  regu- 
lar course  of  his  agency  is  in  the  actual 
custody  ol  the  goods  at  the  time  the  no- 
tice  is  given,  is  notice  to  the  carrier. 
(Bierce  v.  Bed  Bluff  Hotel  Co.,  31  Cal.  IfiO.) 

The  case  made  by  the  record  shows  that 
the  goods  in  question  were  consigned  to- 
the  care  of  the  defendant  at  Cisco,  to  be 
forwarded  liy  him  in  the  usual  course  of 
busines<  to  the  vendee  at  VirL'lnia  City. 
That  the  defendant  was  engaged  in  the- 
forwarding  business  at  Sacramento,  and 
had  an  agent  at  Cisco  whose  business  it 
was  to  receive  all  gooils  shipped  to  the 
care  ol  defendant,  and  deliver  them  to  the 
order  of  the  vendee  u[ion  payment  or 
charges  and  commissions.  'I'liat,  while 
the  goods  were  at  Cisco  and  in  the  custo- 
dy of  the  defendant's  agent,  who  had  full 
charge  of  the  forwarding  busin-ss  at  that 
place,  a  letter  from  the  plaintiff,  ad- 
dressed to  the  defendant  at  Cisco,  con- 
taining a  bid  of  the  goods,  and  informing 
the  defendant  that  the  vendee  hail  been  at- 
tached, and  that  he  wanted  to  save  the 
goods,  and  <lirecting  the  defendant  not  to 
deliver  the  goods  to  any  one  except  his 
(tlie  plaintiff's)  agent  at  Virginia,  who 
ivouM  be  l(»oking  out  for  theiu,  was  re- 
ceived by  the  defenilant's  agent  at  Cisco. 
That  the  defenilant,  by  his  ageut.  ac- 
knowledged the  receipt  of  the  letter,  and 
stated  that  the  goods  were  "in  store  and 
he  woulil  hold  them  sul>ject  to  the  order 
of  Byers"  (plaintiff's  acentl.  That  after- 
wards the  vendee  of  tlie  goods  came  to 
the  agent  of  defendant  and,  tendering 
charges  and  commissions,  demanded  the 
goods, and  that  the  demand  was  comfdieil 
with.  That  the  vendee  was  insolvent  at 
the  date  of  the  notice  to  defendant's  agent 
that  the  plaintiff  desired  to  stop  the 
goods  in  his  hands. 

In  view  of  these  facts,  and  the  law  as 
above  declared,  the  defendant  Is  clearly 
liable  for  a  conversion  of  the  goods. 

Judgment  and  order  atUrmed. 


I 


JONES  V.  PADGETT. 


483 


JONES  V.  PADGETT. 
(84  Q.  B.  Div.  650.) 


Queen's  Bench  Division.    March  27,  1890. 

ApponI  from    the    WoKtiiilnster   couritv 
court.  ■' 

Tlie  plaintiff  cnrried  on  tho  ImsinesH  of  a 
woolen  niercliant  «t  on(>  ndilreHH,  and  of  a 
tailor  lit  (in<jtlu'r.    Ah  a  woolen  nierchnnt 
he   ordered    of   the   deieiidun ts,  who  were 
woolen  ninnufactiirers,  a    (inantity  of  "in- 
dipo  hluo  cloth,"  to  he  inacje  aecordin"  to 
Huniple.     He   intnnded    to    use  the  elotli  in 
his   husinesH  as  a  tailor  for  the  purpose  of 
iiiHkinK  it   into  servantH' liveries ;  hut  the 
fact    that   he  was  a    tailor  as    well    hh   a 
woolen  merchant    was    unknown    to    tho 
defendants,  and  he  did    not   coniniunicnte 
to  them  the  i)articular  purpose  for    which 
he    wanted    the    cloth.      The    defendantH 
made   and   supplied  to  the  plaintiff  cloth 
which  wan  of  the  description  ordered    and 
which    corresponded     with      the    sample   i 
The  plaintiff  made  the  cloth  into   liveries 
which  he  supplied   to    a    London    club    for 
the  use  of  its  servants.     Alter    tlie   liveries 
had    been    In  use   for    a    few   weeks,    they 
Hhowed  si^ns  of  wear,  the   surface  of  the 
cloth  came  off,  and    the  dve  came  out      It  I 
was   admitte<l    that    the    cloth    was   not 
strong   enoiitth    in    te.xture    for    the  liard 
usase  to   which  servants'  liveries  are  sub- 
Jected,  aiKl    that  it  was  altoKether  unsuit- 
able for   that  purpose.      There    was   evi- 
dence   that  one    of    the  ordinary    uses  to 
winch    indiiro    blue  cloth  was  aprilied  was 
the  makiiif?  of  servants'  liverlos,  tliouKh  it 
was  also   freijuently  used  for    other    pur- 
poses, such    as   carriage  lininRS,  caps   and 
boots.     There   was   no   evidence   that  the 
cloth   supplied    by  the  ilefendants  was  un- 
suitable   for    these    latter   imrposes.     lie- 
fore  or.|erin«  the   cloth    the   plaintiff   sub- 
jected (he  samiile  to  the  ordinary  tests  for 
the   purpose  of    a.scertaininj:    whether    it 
was  suitable    for    liveries,  and    failed    to 
discover  that   it  was  not  so.     The   plain- 
tiff having  sued  the  defi-ndants  for  breach 
of  an    iin[)lied    warranty    that    the  cloth 
was   inerchnntable,  the  judRe   left    to    the 
jury   the    (juestion    whether   it    was   mer- 
chantable   as    supplied    to    woolen    mer- 1 
chants,  ami    refused    to   leave  to  them  the 
question    whether  an    ordinary  and  usual 
use  of  cloth    of    the    description    ordered 
was  the   making  of   it   into  liveries      The 
verdict   havins  passed  for  the  defendants 
tho   plaintiff  moveil  for  a  new  trial  on  the 
ground  of  misdirection. 

Danckwerts,    for    plaintiff.     Ciuiry,    for 
defendants,  was  not  called  upon.  I 

Lord  COIJCfUIHJK,  C.  .J.  I  am  of  opin-  ! 
Ion  that  in  this  case  the  direction  of  the 
cpiiMty  court  jiidue  to  the  jury  was 
rlKht  and  that  there  was  not  aiiv  such 
non-direction  as  made  his  direction 
amount  to  a  misdirection.  There  is  no 
oouhtthatifa  manufacturer  sells  an  ar- 
ticle which  he  knows  is  bouirht  for  a  par- 
t  ciilar  purpose,  he  impliedly  warrants 
ti  at  It  IS  ht  for  that  |)articnlar  purpose, 
innt  IS  a  principle  which  was  established 
some  sixty  years  ago  in   the  case  of  Jones 


Jlncp'^.WA^r'"'"''^*'^"  "«*'"'  upon  ever 
fh„f  ,""ft''«  present  case  Is  not  within 
;„»,/■",•.  '"■'^"""t'  "•'tl'i"K  was  mentioned 
to  the  seller  as  to  the  particular  purpose 
'for  which  this  cloth  was  bouKht,  and  there 
was  nothing  to  llx    him    with    knowlellKe 

was  that   the  seller  on    the   one  sl.le  woH 
a    manufacturer,   and   the   buyer    on    the 
..o""/','"    ""'"  "    "'""li'"    merchant.     No 
miKhthelthe   Roods    to   some   person    or 
ther    who    miKht  use  them  tor  a  purpose 
for  winch    they  were   not    ht.    and    I     nav 
assume  that  the  Roods  here  were  unlit  for 
the  particular  purj.ose  to  which  tli.-  plain- 
tiff applied  them.    Hut  there  was  nothlne 
beyond    the   position    of    the    parties,    to 
show  that  the  seller  knew  thespecltic  pur- 
pose  for  which    they  were  bought,  and    It 
I  could    not  be  ilenied  tliat  they  mJKht  have 
been  used  for  a  variety  of  other   i)urpose8 
for  which  they  were   fitted.     The   plaintiff 
misht  liave  sold  them  to  lie  used  for  niir- 
poses    for    which     they    were   applicalde. 
Hut  then  it  is  said  tliat  the  case  of  Drum- 
mond  V.  Van  Iurcu-  in   the  house  of  lords 
carries   the    law    farther    than    .Jones    v 
liriKht.'i     In    my  opinion    that   is   not  so. 
1  here  was  no  intention  on  the  part  of  the 
lords  to  extend    the   old    rule.     L.ird  .Mac- 
naKhten  exi>ressly  said  that  he  did  not  ro 
beyond    it;    so  also    did     Lord    .Selborne 
.\nd  Lord   Herscliell,  on    whose  judgment 
Hliecial  reliance  has  liecn    placed,  was  par- 
ticiilarly   careful    to   ex|)lain    that    he  did 
not    intoiKl    to   carry  the  doctrin.- farther 
lie  said:   "It  was  ur^ed  for  the  appellants 
by  the  attorney-Reiieial,  In  his  able   arsu- 
ment   at    the  bar,  that  it  would  be  unrea- 
sonable  to    reipiire  that    a    manufacturer 
should  be  cognizant  of  all  the  purposes  to 
'which    the  article  he  niaiiiifartures   inb'ht 
be   applied,  and    that    he    should    be    ac- 
quainted with  all  the   trades   in    which    It 
may  be  use<l.     1  asrree.     Where   the  article 
I  may  l)e  used  as  one  of   the  elements   in    n 
I  variety    of  other  manufactures.  I  tliink  it 
j  may  be    too  iiiiich  to  impute  to  the  maker 
<)f    this   ci>iiiinon    article   a  knowledge    of 
the   details    of     every    manufacture     Into 
I  which  it  may   enter   in   conil)inatii>n  with 
[Other   materials."     If   the   plaintiff    is    to 
succeed,  it  must  1)0  on  the  ground    of   the 
reasonableness  of   Imputing   such    knowl- 
edge to  the   manufacturer.     I    do   not   see 
that  there  was  any  evidence  that  the  mak- 
iiiR   of   liveries   was    the  only    purpose,  or 
oven    the  most    usual    purpiise.  for   which 
this   particular    kind    of  cloth    was   ordi- 
narily used,  and  uiil.ss  that  is  so,  there  Is 
nothinu:    to    Hx    the     manufacturer    with 
knowledse    which    would    brinjj    the  case 
within  the  rule. 

Lord  KSIlKri,M.R.  Thequostioii  which 
w  lis  left  by  the  judne  to  the  jury,  and  the 
Hulliciency  of  which  is  now  complained  of, 
was  whether  the  cloth  supplied  by  the  de- 
fenilants  to  tin-  plaintiff  was  merchant- 
able as  su|iplied  to  woolen  inen-hantR. 
The  cloth    in  cpiestion  was   ordered  uniler 


•5  Bing.  5.11. 

« 13  A  pp.  Ciis.  2S4. 

•5  Bing.  533. 


484 


JOXES  V.  PADGETT. 


a  particular  name,  namely,  "indigt)  blue 
cloth,"  by  a  wooUeu  merchant  of  a  wool- 
len cloth  manufacturer,  to  be  made  accord- 
ins  to  sample.  It  waa  not  denied  that 
the  cloth  supplied  anHwered  the  name, 
nor  was  it  disputed  that  it  agreed  with  the 
sample.  But  it  was  said  that  there  was 
a  breach  of  an  implied  warranty  that  it 
should  be  fit  for  the  particular  purpose 
of  being  made  into  liveries.  Now  the  rule 
with  regard  to  the  imitlied  warranty  of 
fitness  which  arises  in  the  case  of  a  sale  of 
goods  is  that  which  is  laid  down  in  Jones 
V.  Just'*  in  the  fourth  of  the  five  classes  of 
cases  there  enumerated  :  "Where  a  manu- 
facturer or  a  dealer  contracts  tosupplyan 
article  which  he  manufactures,  or  produces, 
or  in  which  he  deals,  to  be  api)lied  to  a 
particular  purpose,  so  that  the  buyer  nec- 
essarily trusts  to  the  judgment  or  skill  of 
the  manuf.-icturer  or  dealer,  there  is  in 
that  case  an  imi)lied  term  or  warranty 
that  it  shall  be  reasonably  fit  for  the  pur- 
pose to  which  it  is  to  be  applied."  Those 
are  the  limits  of  the  warranty.  Here  the 
goods  were  ordered  by  a  woollen  mer- 
chant. He  no  doubt  happened  also  to  be 
a  tailor;  but  that  fact  was  unknown  to 
the  defendant.  The  purpose  for  which  a 
woollen  merchant  buys  cloth  is  to  sell  it 
again  to  others.  There  was  indeed  evi- 
dence that  sucii  cloth  as  this,  if  sold  to  a 
tailor,  was  not  fit  for  one  of  tlie  purposes 
to  which  a  tailor  might  apply  it.  But 
there  was  no  evidence  that  it  was  not  fit 
for  other  of  the  purposes  even  of  a  tailor. 
Moreover,  the  cloth  might  have  been  sold 
by  woollen  merchants  to  fifty  other  classes 
of  persons  besides  tailors.  There  was  no 
evidence  that  wool  manufacturers  know 
that  woollen  merchants  sell  to  tailors  at 
all.  The  manufacturer  here  was  not  told, 
either  expressly  or  by  implication,  that 
the  goods  were  ordered  that  they  might 
be  sold  to  tailors.  Then  is  there  any  au- 
thority which  establishes  that  where 
goods  are  ordered  by  a  woollen  merchant 
of  a  cloth  manufacturer  the  latter  must 
be  taken  to  know  that  they  may  he  or- 
dered to  be  sold  to  tailors?  The  case  re- 
ferred to  in  the  house  of  lords  is  nu  au- 
thority for  such  a  proposition,  for  there 
the  goods    were  ordered  under  the  desig- 


<L.  R.  3  Q.  B.  197. 


nation  of  "coatings,"  which  necessarily 
imported  that  they  were  intended  to  be 
made  uo  into  coats,  and  therefore  the 
facts  of  that  case  came  within  the  precise 
terms  of  the  fourth  rule  in  .lones  v.  Just. 6 
it  is  suggested  that  every  wool  manufac- 
turer is  bound  to  know  all  the  ordinary 
purposes  to  which  a  woollen  merchant 
may  put  the  cloth  which  he  buys — that  is 
to  say,  he  is  bound  to  be  acquainted  with 
all  the  trades  to  which  the  woollen  mer- 
chant may  re-sell  it;  but  that  is  the  very 
proposition  which  L.ord  Herschell  ex- 
pressly denies.  •'It  would  be  unreason- 
at)lR, "  he  says,  "  to  re(iuir3  that  a  manu- 
facturer should  becognizant  of  all  the  pur- 
poses to  which  the  article  he  nianufac- 
tui'es  might  be  applied,  and  that  heshould 
be  acquainted  with  all  the  trades  in  which 
it  may  be  used."  Though  he  adds  that 
"There  seems  nothing  unreasonable  in  ex- 
pecting that  the  maker  of  'coatings' 
should  know  that  they  are  to  be  turned 
into  coats."  And  Lord  Selborne  says, 
that  although,  "if  the  goods  being  of  a 
class  known  and  understood,  between 
merchant  and  manufacturer,  as  in  demand 
for  a  parti<Milar  trade  or  business,  and  be- 
ing ordered  with  a  view  to  that  market, 
are  found  to  have  in  them,  when  sup- 
plied, a  defect  jjractically  new,  not  dis- 
closed by  the  samples,  but  depending  on 
the  method  of  manufacture,  which  ren- 
ders them  unfit  for  the  market  for  which 
they  were  intended,"  the  doctrine  nf  im- 
plied warranty  applies;  yet  that  doctrine 
"ought  not  to  be  unreasonably  extended, 
so  as  to  require  manufacturers  to  be  con- 
versant with  all  the  specialties  of  all 
trades  and  businesses  which  they  do  not 
carry  on,  liut  for  the  purposes  of  vchich 
goods  may  be  ordered  from  them."  The 
lords  decided  that  case  on  tlieground  that 
it  came  within  the  fourth  proposition  in 
Jones  V.  Just, 6  which  proposition  they 
held  to  be  applicable  to  a  case  in  which 
the  goods  were  bought  by  sample.  But 
here  there  is  no  evidence  to  bring  the  case 
within  that  proposition.  Thedirection  of 
the  county  court  judge  was  right,  and 
this  appeal  must  be  dismissed. 
Appeal  dismissed. 


»L.  R.  3Q.  B.  197. 
•L.  R.  3Q.  B.  197. 


JONES  V.  UNITED  STATES. 


487 


JONES  V.  UNITED  STATES. 

(96  U.  S.  24.) 

Supreme  Court  of  the  United  States.    Oct. 
Term,  1877. 

Appeal  from  the  court  of  claims. 

Mr.  James  I.owndes,  forappeliiint.  The 
Solicitor-General,  contra. 

Mr.  Justice  CLIFFOUD  delivered  the 
opIiiiiMi  of  tlie  court. 

Time  is  usually  of  the  essence  of  nn  exec- 
utory contract  for  the  saleandKulisequent 
delivery  of  ^ood.s,  where  no  ri;;ht  of  prop- 
erty in  the  same  |)aHHe8  by  tlx-  hart^ain 
from  the  vendor  to  the  purchaser;  and 
the  rule  in  such  a  case  is,  tliat  the|)UrchaH- 
er  is  not  hound  to  accept  and  pay  for  the 
Koods,  unless  the  same  are  delivered  or 
tenderefl  on  the  day  specilied  in  the  con- 
tract. Addison,  Contr.  Is."):  (iath  v.  Lees, 
3  H.  &  C.  5."i8;  Coddington  v.  I'aleolojjo, 
Law  Kcp.  2  E.xch.  1!J(!. 

Articles  of  aRreenient  were  made  June  1, 
]N(;4.  Iietween  an  asHislaiit-(|uarterniaster 
of  the  army  and  the  petitioner,  who  con- 
tracti'd  to  man.ifacture  and  deliver  at  the 
clothing;  ilepot  of  the  army  in  I'incinnati, 
hy  or  liefore  the  15th  of  Dccemher  then 
ne.xt,  two  hundred  thousand  yards  of 
darli-hlue  uuiforni-cloth ;  and  it  was 
aRreed  that  deliveries  under  the  contract 
should  he  nia<le  as  follows:  five  thousand 
yards  In  June,  twenty-five  thousand  yards 
in  .luly  twenty-five  thousand  yard'*  in 
August,  thirty-live  th<)usand  yards  in 
Septeiuher,  fifty  thousand  yards  in  l)cto- 
her.  fifty  thousand  yards  in  November, 
and  ten  thousand  yards  on  or  liefore  the 
15th  of  l)eceiul)er  in  the  same  year. 

Other  persons  were  interest.'il  with  him 
in  the  contract  at  the  time  it  was  made; 
bu^^  one  after  another  retired,  until  the 
petitioner  is  the  only  one  that  ret.-iins  any 
interest.  His  claim  is  fully  set  forth  in  his 
petiti<ui. 

Certain  instalments  of  the  cloth  were 
delivered,  for  which  the  I'nited  States  paid 
the  contract  price,  excepting  ten  percent 
reserved  hy  the  United  States,  pursuant 
to  the  written  contract.  .Neither  party 
complains  of  any  default  jirior  to  August 
of  that  year,  when  the  mill  in  which  the 
cloths  wc^re  manufactured  was  destroyed 
by  fire,  and  the  petitioner,  in  couseciuence 
of  the  loss,  failed  to  make  the  deliveries 
of  the  cloth  as  the  contract  required  ;  and 
the  assistant-quartermaster  called  his  at- 
tention to  the  fact,  and  notified  the  sure- 
ties that  he  should  proceed  airainst  their 
principal  for  his  delint|uenc,v. 

Unable  to  fuHil  the  terms  of  thecontract, 
he  applied  by  letter  to  the  person  in 
chnrjie  of  the  depot  to  be  released  from  the 
obligation,  and  for  the  payment  of  the 
reserved  ten  per  cent.  Beini;  nnsuccessful 
In  that  application,  he  visited  Washing- 
ton, for  the  purpose  of  applyinnto  thede- 
partinent  tobe  released  from  the  unfinished 
part  of  his  contract;  and  with  that  view 
sought  an  interview  with  the  (piarter- 
master  general,  who  referred  him  to  the 
heud  uf  tlie  bureau   of  clotliing,  wliere  he 


was  told  that  there  was  no  power  out  of 
congress  to  release  him,  and  that  he  ninst 
furnish  theKoods.  Had  the  conversation 
between  the  parties  stopiied  there,  tlif» 
case  would  be  destitute  of  any  color  of 
equity;  but  the  lindinj?  of  the  court  below 
shows  that  the  head  of  the  bureau  re- 
nisrked,  that,  upon  application  to  the 
assistant. (piartermaster,     sufficient    time- 

I  would  lie  allowed  to  deliver  the^coods. 
Thouiih  told  that  there   was   no   power 

'  out  of  couKress  to  release  him  from  hi» 
contract,  he  (irocured  the  necessary  quan- 

I  tity  of  such  cloth  to  be  manufactured,  and 
aiiplied  by  letter  to  the  aHsistant-qnarter- 
master  for  leave  to  complete  thecontract, 
who  referred  the  letter  to  the  quartermas- 
ter-Kcneral  for  decision;  and  his  reply  to 
the  petitioner,  as  Riven  in  the  finilincs. 
was,  that  he  could  not  authorize  tlie  re- 
ieasi'  from  contracts,  nor  the  exiension  of 
time  for  the  delivery  of  articles  under  a 
contract,  nor  any  action  whatever  not 
in  accordance  with  their  terms  and  con- 
ditions. 

I  Prices  in  the  market  fell  one-half;  but 
the  petitioner  tenrlered  the  cloths   to   the 

I  asslstant-(|uartermaster,  wIkj  refused  to 
receive  the  same,  liecause  the  time  for  de- 
liveries under  the  contract  had  passed. 

Damaues  are  claimed  l>y  the  petitioner, 
upon  the  cround  that  the  time  for  the  de- 
livery of  the  cloths,  as  specilied  In  the 
contract,  was  e.xtenderl :  but  the  court  of 
claims  decided  that  the  theory  of  fact  in- 
v(dved  in  the  defence  was  not  proved; 
that  the  remarks  of  the  head  of  the  bu- 
reau ol  clothing  were  not  sutlicient  to  su|>- 
port  that  theory,  as  they  miRlit  not  im|ily 
any  thinR  more  than  the  <qiinion  of  that 
olli.-er  as  to  what  the  assistant-quarter- 
n. aster  would  do. 

The  petition  havinjj;  been  dismissed,  due 
appeal  was  taken  by  the  petitioner;  and 
he  assigns  the  follou  ini;  errors:  I.  That 
the  court  erreil  in  holding  that  time  was 
of  the  essence  of  the  written  contract.  2. 
That  the  court  erred  in  decidini;  that  there 

.  was  not  a  valid  e.-ctension  as  to  the  time 
for  deliveriiiir  the  cloths.  :i.  That  the 
court  erred  in  overruling  the  proposition 
of  the  petitioner,  that  the  United  States 
were  estopped  from  ilenyinR  the  existence 
of  thecontract  when  the  Roods  wen^  ten- 
dered. 4.  That  the  court  erred  in  hiddlnic 
that  there  was  not  a  new  contract,  and 
that  such  new  contract  was  void  because 
not  in  writinir. 

Whi'ther  one  promise  Im  the  considera- 
tion for  another,  or  whether  the  perform- 
ance, and   not    the    mere    promise,    be    the 

'consideration,  is  to  be   iletermiued    by  the 

;  intention  pnd  meaninRof  the  parties,  as  col- 
lected from  the  instrument,  and  the  appli- 
cation of  Rood  sense  and  riRht  reason  to 
eaih  particularcase.  Instructive  rules  for 
the  accomplishment  of  that  purpose  have 
been  stated  in  various  deci.-^iuns  of  the 
court  and  in  treatises  of  liiRli  authority, 
some   few   of    which    may  be  consulted  in 

I  this  case  to  advantaRC.  ("hltty,  Contr. 
(ids. 

Where   an   act  is  to  be  performed  by  the 

'  plaintiff  before  the  accrulnii  of  tlie  defend- 
ant's liability  under  his  contract,  the 
plaintiff  must  prove  eithorlils  perloruiunce 


488 


JONES  V.  UNITED  STATES. 


«f  Ruch  condition  precedent,  or  an  offer  to 
perform  it  wliich  tlie  defendnnt  rejected, 
•or  liis  rea<lines8  to  fultil  tliecondition  niitil 
the  defcndiiiit  diHcli!ir;;ed  liiiu  from  k(j  do- 
ing', or  prevented  tlie  execution  of  tlie 
matter  whicli  the  contract  required  liiin 
to  perform.  For,  wliere  the  riprlit  to  de- 
mand the  iierformanre  of  a  certain  act  de- 
pends on  tlie  execution  by  tlie  promisee  of 
a  condition  precedent  or  prior  act,  it  is 
clear  that  the  ivadiness  and  offer  of  the 
latter  to  fulfil  the  condition,  and  the  liin- 
<lranceofitH  performance  b.v  the  promisor, 
are  in  law  eijuivalent  to  the  completion  of 
the  condition  precedent,  and  will  render 
the  promiHor  liable  upon  his  contract. 
Graves  v.  Lei!};,'.)  Kxch.  709;  Morton  v. 
liamb,  7  Term.  IL'5;  Peeters  v.  Opie,  2 
Wins.  Saund.  .'luUb ;  Cutter  v.  Powell,  2 
Xmith,  Lead.  Cas.  lo. 

Well-considered  anthoritie."^  everywhere 
agree  that  a  contract  may  be  ro  framed 
that  the  promises  upon  one  side  may  be 
-dependent  npon  the  promises  upon  the 
other;  so  that  no  action  can  be  main- 
tained, founded  on  the  written  contract, 
■without  showing  that  the  plaintiff  has 
performed,  or  nt  least  has  been  read.v,  if 
allowed  by  the  other  part.v,  to  perform,  his 
own  stipulations,  which  are  a  condition 
precedent  lo  his  right  of  action  :  nor  is  it 
necessary  to  enter  into  much  discussion  in 
this  case  to  prove  tliat  the  described  in- 
stalments of  clothing  were  required,  by  the 
true  intent  and  meaning  of  the  parties,  as 
expressed  in  the  written  contract,  to  be 
•delivered  at  the  time  and  place  therein 
specified  and  set  forth,  as  the  manifest 
purijose  and  oliject  of  the  contract  was 
to  procure  necessar.v  supplies  of  clothing 
for  an  arm.v  in  the  field. 

None  will  pretend  that  any  right  of 
property  in  the  clothing  passed  to  the 
United  States  by  the  bargain  between 
the  parties;  and  the  rule  In  such  cases  is, 
that  time  is  anri  will  be  of  the  essence  of 
the  ct)ntract,  so  long  as  the  contract  re- 
mains executory,  and  that  the  purcliaser 
will  not  be  bound  to  accept  and  pay  for 
the  goods,  if  they  are  not  delivered  or  ten- 
dered on  the  day  specified  In  the  contract. 
Addison,  Contr.  ls.">. 

Suppose  that  is  so,  still  it  is  contended 
by  the  petitioner  that  the  time  of  perform- 
ance wasextendeil  by  the  remarks  of  the 
head  of  the  bureau  of  clothing  when  the 
contractor  applied  to  be  released  froin 
the  obligation  to  complete  the  unfinished 
part  of  his  contract ;  butthecourt  is  un- 
able to  concur  in  that  proposition.  The 
finding  of  the  court  below  shows  that  no 
such  extension  was  ever  made. 

Conditions  precedent  may  doubtless  be 
waived  by  the  party  In  whose  favor  they 
«re  made;  but  the  findings  of  the  court 
below  do  not  afford  an.v  ground  to  sup- 
port any  such  theory.  Cases  arise  where 
•either  i)art.y,  in  case  of  a  breach  of  thecon- 
trnct.  may  be  compensated  in  damages; 
and  In  such  cases  it  is  usually  held  that 
the  conditions  are  mutual  and  inileiiend- 
ent:  but  where  the  conditions  are  depend- 
ent and  of  the  essence  of  the  contract,  it 
is  ever.vwhere  held  that  the  performance 
of  one  depends  on  the  performance  of  an- 
other, in  which  case  the  rule  is   universal, 


that,  until  the  prior  condition  is  per- 
formed, the  other  i)arty  is  nnt  liable  to  an 
action  on  the  contract.  Addison,  Contr. 
!)!'.■■). 

Whore  time  is  of  the  essence  of  the  con- 
tract, there  can  be  no  reco\er,v  at  law  in 
case  of  failure  to  perform  within  the  time 
stipulated.  Slater  v.  Emerson,  19  How. 
•22i. 

Additional  authorities  to  show  that  a 
party  bound  to  iierform  a  condition  pre- 
cedent cannot  sue  on  the  contract  with- 
out proof  that  he  has  performed  that  con- 
dition, is  scarcely  necessary,  as  the  jirinci- 
ple  hasbecomeeleinentary.  Gouverneurv. 
Tillotson.  .3  Edw.  (N.  Y.)  Ch.  H4S. 

Conditions,  says  Story,  may  be  either 
precedent  or  subseiiuent,  liut  a  condition 
precedent  isone  which  must  happen  tiefore 
either  party  becomes  bound  by  the  con- 
tract. Thus,  if  a  person  agrees  to  pur- 
chase a  cargo  of  a  certain  ship  at  sea,  pro- 
vided the  cargo  proves  to  be  of  a  particu- 
lar qualit.v,  or  provided  the  ship  arrives 
before  a  certain  time,  or  at  a  particular 
port,  each  proviso  is  a  condition  prece- 
dent to  the  i)erformance  of  such  a  con- 
tract; and  unless  the  cargo  proves  to  beot 
the  stipulated  ((uality,  or  the  ship  arrives 
within  the  agreed  time  or  at  the  specified 
port,  no  contract  can  possibly  arise.  Sto- 
ry, Contr.  33. 

Impossible  conditions  cannot  be  per- 
formed; and  If  a  person  contracts  to  do 
what  at  the  time  is  atisolutely  impossible, 
the  contract  will  not  bind  him,  because  no 
man  can  be  obliged  to  i)erforni  au  impos- 
sibility ;  but  where  the  contract  is  to  do 
a  thing  which  is  jjossible  in  itself,  the  per- 
formance is  not  excused  by  the  occurrence 
of  an  inevitable  accident  or  other  contin- 
genc.v,  although  it  was  not  foreseen  by 
the  part.v,  nor  was  within  liis  control. 
Chitty,  Contr.  663;  Jervis  v.  Tompkinson, 
1  H.  &  N.  208. 

Other  defences  failing,  the  petitioner  in- 
sists that  the  United  States  are  estopiied 
to  deny  that  the  time  of  performance  was 
extended,  as  set  up  in  his  second  assign- 
ment of  error;  but  the  court  Is  unable  to 
sustain  that  proposition,  as  the  remark 
of  the  head  of  the  bureau  does  not  amount 
to  a  contract  for  such  an  extension,  being 
nothing  more  than  the  expression  of  an 
opinion  that  the  a8Sistant-()uartermaster 
would  grant  the  applicant  some  indul- 
gence. 

Viewed  in  that  light,  it  Is  clear  that  the 
United  States  did  not  do  an.v  thing  to 
warrant  the  contractor  in  changing  his 
[)ositlon,  and,  if  not,  then  it  is  settled  law 
that  the  principle  of  estoppel  does  not  aji- 
ply.  Pickai'd  v.  Sears,  6  Ad.  &  K.  474; 
Freeman  v.  ('ooke,  2  Excli.  6.j4;  Foster  v. 
Dawber,  6  1d.  So4;  Edwards  v.  (,'hapman, 
1  Mee.  &  W.231;  Swain  v.  Seamens.y  Wall. 
2.'>4. 

Estoppel  do#i  not  arise  in  such  a  case, 
unless  the  [larty  for  whom  the  service  is 
to  be  ])erforii;ed  indtced  the  otiier  party 
by  some  means  to  change  his  position  and 
act  to  his  prejudice  in  consequence  of  the 
inducement;  but  in  the  case  before  the 
court,  the  remark  made  by  the  head  of  the 
bureau  was  not  of  achar.icter  to  warr;int 
the   petitioner    to    assume    tliut   it    waa 


JONES  0.  UNITED  STATES. 


489 


OKreed  thnt  any  such  Indulgence  would  ho 
tt\vpn.     Benjamin,  Sules,  45;  United  StntoH 

V.  si)aw,  1  (;iifr.  ;ji7. 

Coni'luHivo  evidence  tlint  the  time  of  per- 
formance had  expired  Ih  found  In  the  tind- 


InRH  of  the  court,  and  the  petitioner  fnll- 
inn  to  eHtnhlJHh  I)Ih  tlieory  that    tlie   time 
of   pciforindnce   had    been    extended.  It   Is 
cl«;ar  tliat  tliere  iHno  error  In  the  record. 
Judgment  alllnned. 


KIMHKIiLV  V.  I'ATCIIIX. 


491 


KIMUEnLY  et  al.  v.  PATCIIIN. 

(ION.  Y.  330.) 

Court  of  Appealsof  New  York.   JuneTcrm, 
1><5!». 

Appeal  from  the  Hii|)r('iiip  court.  Action 
to  rofovi'r  (li<>  viiliic  of  CidOli  IjiihIk-Ih  o( 
wlu'Mt,  ullcijcil  to  liiive  been  tlif  property 
of  llie  pluiiitiffH,  hikI  to  have  lieen  con- 
verted hy  the  defeiidant.  I'lion  the  trial 
before  .Mr.  .liiKtice  (ircene.  at  the  JCiie  cir- 
cuit, it  wiiH  proved  tliat  one  UickiiiHon 
had  in  warehou.se,  at  Liitlefort,  in  WiH- 
consiti,  two  piles  of  wheat,  nmountinK  to 
<iVlV.)  ImimBi'Is.  .IoImi  Sliultleworlh  i)ro- 
poHed  to  i)urchaHc  (illOU  huKJielK  of  wheat. 
Upon  l)eiiiK  whown  tlie  pileB,  he  expresweil 
a  iloul)t  wlietlier  they  contained  that 
quantity.  DickiuHon  declared  IiIh  oi)inion 
that  tliey  did.  and  a»{r(ed  t(j  make  up  the 
quantity  if  tliey  tell  short.  A  wale  wan 
then  made  nt  seventy  centM  per  bushel, 
Dickinson  si^^uinn  "'"I  deliveriiiK  to  Sliut- 
tleworth  a  memorandum,  as  IoHowh: — 

"Littlefort,  February  17,  1S48. 
"John  Sliuttleworth  bou^'it  of  D.  O.  Dick- 
inson. 
COOO    l.ushol.s    of    wheat,     (lolivered    on 

board.   70  cents $4,200 

Ueceivf<l    his    draft     upon    John 
Shtitllcworlh,  of  BulTalo,  for..   $2,100 

To    remit    nie 1,(H>0 

Five  drafts  of  .?100  each 500 

4,200 

"D.  O.  Dickinson." 

He  also  sifined  and  delivered  to  Shuttle- 
worth,  this  pa|)er,  viz.  :— 

"  I.ittlefort,  Ket)ruary  IS,  1S4S.  fiOOO 
busliels  wheat.  Ileceived  in  store  (lOUO 
bushels  of  wheat,  subject  to  the  order  of 
John  Slinttleworth,  free  of  all  chartres,  on 
board.      !).(>.  Dickinson." 

Tile  wheat  was  I'lc  undisturbed  in  the 
wareliouse.  Slinttleworth  sold  the  wheat 
to  the  defendant,  assiKniiic  to  him  the  bdl 
of  s'lle  and  warehouse  receipt.  Dickinson, 
shortly  afterwards,  sold  the  whole  quan- 
tity of  wheat  in  the  two  piles  to  a  person 
uniler  wliom  the  i)laintiffs  derived  title. 
The  delendant  ha vinj; obtained  tliei)Gsses- 
sion  of  the  wheat,  this  action  was 
liroii^ht.  The  juil;ie,  un<ler  exception  by 
the  dcfendiint.  ilirccted  a  verdict  for  the 
plainiiffs,  which  was  rendered,  and  the 
jnilKUient  thereon  havinjr  licen  allirme()  nt 
Keneral  term,  in  the  eit:luli  district,  the 
delendant  appealed  to  this  court. 

John  II.  Ueynolils,  for  appellant.  John 
L.  Talcott,  for  respondents. 

rOMSTOCK,  J.  Koth  p.-irties  trace  their 
title  to  the  wheat  in  controversy  t<.  D.  (). 
Dickinson,  wlio  was  the  former  owner, 
and  held  it  in  store  at  Littlefort,  Wiscon- 
sin. The  defendant  claims  thr<)Ui;l>  a  sale 
made  by  Dickinson  to  <jne  .shiittlewi.rth 
on  the'lSth  of  I'ehrnarv.  IM^.  If  that 
sale  was  effectual  to  pass  the  title,  it  is 
not  now  pietended  that  there  is  nny 
ground  on  which  the  plaintiffs  can  recover 
in  this  suit.  The  sale  to  tlie  person  under 
whom  tliey  claim,  was  about  two  and  u 
half  inonlliH  junior  in  point  of  time. 


The  sale  to  Shuttleworth  was  by  n  wrlN 
Int:  in  tlie  form  of  a  present  transferof  (KKX) 
bushelH  of  wheat,  at  seventy  cents  per 
bushel.  M(,  manual  delivery  was  then 
made,  lint  Instead  thereof  the"  vendor  exe- 
cuted and  delivered  to  the  vendee  another 
Instrument,  di-clarint;  that  he  had  rei-eiveil 

i  ill  store  the  (imitt  bushelssubject  to  the  ven- 
(lee's  onler;  of  llie    price   *-Ji;  ID    was    paid 

[down,  and  the  residue  $l(iiM),  which  was 
to  be  paid  at  a  future  day,  the  purchiiHer 
nftei  wards    offered    to    pay,  accordiiiK    to 

j  tli(,'  aurcement.  So  far  the  contract  had 
all  the  requisites  of  a  perfect  sale.  The 
Sinn  to  be  paid   by  the    piirclmHer  wan   as- 

i  certaiiicil,  because  tlie  niiiiiber  of  bushels 
and  the  price  per  bushel  were  speritied  in 
the  contract.     .XlthonKli    the   articie  was 

!  not  deliverej  into  the  actual  possession  of 
the  purchaser,  yet  the  s»ller,  by  the  plain 
terms  of  his  nKreement,  consMtnted  him- 
self the  liailee,  and  henceforth  stood  in 
that  relation  to  the  purcliaser  and  to  tlie 
liropcrty.      Tiiat  was  eipial    in    its  results 

1  to  the  most  formal  delivery,  and  no  ar;;u 
tnent  is  required  to  show"  tliat  the  title 
wascompletely  divested,  unless  a  ditliculty 

1  exists  yet  to  be  considered. 

The  quantity  of  wheat  in  store  towhich 
the  contract  related,  was  pstiniateU  l).V 
the    parties   at    about   iiniKI   liusliels.     Hut 

I  subsei|uently,  after  Dicixinson  made  an- 
other sale  ol  the  same  wheat  to    the  party 

I  under  whom  tlie  itlaintiffs  claiiu.it  ap- 
peared   on    measurement  tliat  the  niinitier 

j  of  bushels  was  (i.'-llt,  lieiiiK  an    exo.  ss  of  I'l'.t 

I  bushels.  When  Shuttleworth  boimht  tliu 
0000  bushels,  that    quantity  was    mixed  in 

I  the  storehouse  with  the  excess,  and  no 
measurement  or  separation  was  iiiude. 
'I'besale  was  not  in  bulk,  but  pn-ci-iely  of 
the  lllllio  bnslK'Is.  On  this  mound  it  is 
claimed. on  the  part  of  tlie  plaintiffs,  that 
in  ieiral  effect  the  contract  was  executory, 
in  otlier  worils  a  mere  aitreeiiieiit  to  sell 
and  deliver  llie  spi^ciliiMl  i|iiiinlity,  so  that 
no  title  passed  by  the  transaction.  It  Ik 
not  denied,  liowever.  nor  does  it  admit  of 
denial,  that  the  par  ties  intenl,  d  a  transfer 
of  the  title.  The  .•irmiiiieii t  is, and  it  is  the 
only  one  which  is  even  plausible,  that  the 
law  overrules  that  intenliiin,  nItlioUKh 
expressed  in  pljiin  written  laiiKnaKe,  en- 
tirely appropriate  to  the  put  pose. 

It  is  a  rule  asserted  in  many  ieiinl  au- 
thorities, but  wliicli  may  be  quite  as  fitly 
called  a  rule  of  reason  and  loi-'ic  as  of  iaw, 
tliat  in  order  to  an  executed  sale,  so  as 
to  transfer  a  title  from  one  party  to  an- 
other, the  tliini;sold  must  be  ascertained. 
This  is  a  self-evident  triilli.  when  applied 
to  those  sul«jects  <if  property  which  are 
distiiiKUisliableby  their  physical  at  tributes 
from  all  other  things,  and.  I  herefore.  are 
capable  of  exact  identillcalion.  .\o  person 
can  be  said  to  own  a  horse  or  a  picliin-, 
unless  he  is  able  to  identify  the  ihattel  or 
S|iecily  wlial  liorse  or  wliat  picliir"  it  is 
that  lieloiius  to  him.  It  is  not  only  legal- 
ly, but  logically.  Imiiosslble  to  hoi. I  pruii- 
ertv  in  siicli  tliiiiits.  unless  they  are  asrer- 
taiiied  and  distinguished  froi:i  all  other 
Illinois;  and  this,  I  apprehend,  is  the  foun- 
dation of  the  rule  that,  on  a  sale  of  chat^ 
teis,  ill  order  to  pass  the  title,  the  nrticlen 
must,  if   not   delivered,    be   desiyiiatod,  su 


492 


KIMBEULY  V.  PATCIIIN. 


tliat  possession  can  betaken  by  the  pur- 
chaser witliout  any  further  act  on  the  part 
of  the  seller. 

Uiit  property  can  be  acquired  nntl  helil 
in  many  thiiiira  wliich  are  incapat)le  of 
Kucli  an  iilentilici'tioii.  Articles  of  this 
nature  a  re  sol  il,  not  by  a  descriptioti  wliich 
refers  to  and  distiniiuishes  the  particular 
tliinfi,  but  in  quantities,  which  are  ascer- 
tained by  v^'eight.  measure,  or  count;  the 
constituent  uarts  wliich  make  up  the 
mass  being  undistinguishable  from  each 
other  by  any  physical  difference  in  size, 
shape,  texture,  or  quality.  (Jf  this  nature 
are  wine,  oil,  wheat,  and  the  other  cereal 
grains,  and  the  flour  manufactured  from 
them.  These  can  be  Identified  only  in 
masses  or  quantities,  and  in  that  mode, 
therefore, they  are  viewed  in  the  contracts 
and  dealinjj;s  of  men.  In  re.-fpect  to  such 
tliinas,  the  rule  above  mentioned  must  be 
applied  accordinf?  tothe  natureof  the  sub- 
ject. In  an  executed  and  perfect  sale,  the 
thini;s  sold,  it  is  true,  must  be  ascertained. 
Hut  as  it  is  not  possible  in  reason  and 
philosophy  to  identify  each  constituent 
particle  composing  a  quantity,  so  the  law 
does  not  require  such  an  identification. 
Where  the  (juantity  and  the  general  mass 
from  which  it  is  to  be  taken  are  specified, 
the  suliject  of  the  contract  is  thus  ascer- 
tained, and  it  becomes  a  possible  result 
for  the  title  tn  pass,  if  the  sale  is  complete 
in  all  its  other  circumstances.  An  actual 
delivery  indeed  cannot  be  made  unless  the 
whole  is  transferred  to  th"  possession  of 
the  purchaser,  or  unless  the  particular 
quantity  si'ld  is  separated  from  the  resi- 
due. But  actual  delivery  is  not  indispen- 
sable in  any  case  in  order  to  pass  a  title,  if 
the  thing  to  be  delivered  is  ascertained,  if 
the  price  is  paid  or  a  credit  given,  and  if 
nothing  further  remains  to  be  done  in  re- 
gard to  it. 

it  appears  to  me  that  a  very  simple  and 
elementary  inquiry  lies  at  the  foundation 
of  the  present  case.  A  quantity  of  wheat 
being  in  store,  is  it  possible  in  reason  and 
in  law  for  one  man  to  own  a  given  portion 
of  it  and  for  another  man  to  own  the  resi- 
due without  a  separation  of  the  parts? 
To  bring  tlie  inquiry  to  the  farts  of  the 
case:  in  tlie  storehouse  of  Dickinson  tliere 
was  a  quantity  not  precisely  known.  In 
any  conceivable  circumstances  could  Sliut- 
tleworth  become  owner  of  60(10  bushels, 
and  Dickinson  of  the  residue,  which  turned 
out  to  be  -40  bushels,  without  the  portion 
of  either  being  divided  from  tlie  other? 
The  answer  to  this  inquiry  is  plain.  Sup- 
pose a  third  person,  lieing  the  prior  owner 
of  the  whole,  had  given  to  S.  a  bill  of  sale 
of  (iOI)O  bushels,  and  then  one  to  D.  for  the 
residue  more  or  less,  intending  to  pass  to 
eacli  the  title,  and  expressing  that  inten- 
ti(m  in  plain  words,  what  would  have 
been  the  result?  The  former  owner  most 
certainly  would  have  parted  with  all  his 
title.  If,  then, the  two  purchasers  did  not 
acquire  it,  no  one  could  own  the  wheat, 
and  the  title  would  be  lost.  This  would 
bean  absurdity.  But  if  the  parties  thus 
purchasing  could  and  would  he  the  own- 
ers, how  would  they  hold  it?  Plainly  ac- 
cording to  their  contracts.  On?  would  be 
entitled  to  (iOOO  bushels,  and  the  other  to 


what  remained   after  that  quantity  was 
subtracted. 

Again  suppose,  Dickinson  having  in 
store  and  owning  '2-ii)  bushels,  Sliuftlo- 
wortli  had  deposited  with  him  0000  bushels 
for  storage  merely,  both  parties  agreeing 
that  the  quantities  might  be  mixed.  This 
would  be  a  case  of  confusion  of  property 
where  neither  would  lose  his  title.  In  the 
law  of  bailments  it  is  entirely  settled  that 
S.,  being  the  bailor  of  the  0000  bushels, 
would  lose  nothing  by  the  mixture,  and, 
it  being  done  by  consent,  it  is  also  clear 
that  the  bailee  would  lose  nothing.  Story 
on  Bailments,  §  40;  -J  Bl.  Com.  40.'5. 

These  and  other  illustratioBs  which 
might  be  suggested,  demonstrate  the  pos- 
sibility of  a  divided  ownershiii  in  the  6".'40 
bushels  of  wheat.  If,  then,  the  law  ad- 
mits that  the  projiert.v,  while  in  mass, 
could  exist  under  that  condition,  it  was 
plainly  competent  for  the  parties  to  the 
sale  in  question,  so  to  deal  with  each 
other  as  to  effectuate  that,  result.  One  of 
them  being  the  owner  of  the  whole,  he 
could  stipulate  and  agree  that  the  other 
should  thenceforth  own  GOOd  bushels  with- 
out a  separation  from  the  residue.  And 
this,  I  think,  is  precisely  wh<jt  was  done. 
The  0000  bushels  n.ight  have  been  uieas- 
ured  and  delivered  to  the  purchaser,  and 
then  the  same  wheat  might  have  been  re- 
delivered to  the  seller  under  a  contract  of 
bailment.  In  that  case  the  seller  would 
have  given  his  storehouse  receipt  in  the 
very  terms  of  the  one  which  he  actually 
gave;  and  he  might,  moreover,  have 
mixed  the  wheat  thus  redeliverfd  with  his 
own,  thereby  reducing  the  quantity  sold 
and  tlie  quantity  unsold  again  to  one 
common  mass.  Now  the  contract  of  sale 
and  of  liailuient,  both  made  at  the  same 
time,  iiroiluced  this  very  result.  The 
formalities  of  measurement  and  deliver.v 
pursuant  to  the  sale,  and  of  redelivery 
according  to  the  bailment— resulting  in 
the  same  mixture  as  before— most  as- 
suredly were  not  necessary  in  order  to 
pass  the  title,  because  these  formalities 
would  leave  the  property  in  the  very  same 
condition  under  which  it  was  in  fact  left; 
that  is  to  say,  in  the  actual  custody  of 
the  vendor,  and  blended  together  in  a 
comnum  mass.  Those  formal  and  cere- 
monial acts  were  dispensed  with  by  the 
contract  of  the  parties.  They  went  di- 
rectly to  the  result  without  the  jierform- 
ance  of  any  useless  ceremouies,  and  it 
would  be  strange, indeed,  if  the  law  denied 
their  power  to  do  so. 

There  are  in  the  books  a  considerable 
number  of  cases  having  a  real  or  some 
apparent  bearing  upon  the  question  un- 
der consideration.  Some  of  them  very  un- 
equivoc«lly  supjiort  the  defendant's  title 
under  the  sale  to  Sliuttleworth.  A  few 
only  of  these  will  be  cited.  In  Wliitehouse 
V.  Frost,  12  East,  014,  the  vendors  owned 
forty  tons  of  oil  secured  in  one  cistern, 
and  they  sold  ten  tons  out  of  the  forty, 
but  the  quantity  sold  was  not  measured 
or  delivered.  Tlie  jiurchaser  sold  the 
same  ten  tons  tn  another  person,  and 
gave  a  written  order  on  the  original  ven- 
dors, which,  on  lieing  presenteil,  they  ac- 
cepted,   by  writing   the   word  "accepted" 


KIMBERLY  v.  PATCIIIX. 


493 


oM  tlie  face  of  the  order,  and  HisninK  their 
iiiiJiieH.  It  was  held  l)y  the  ICiiKlisli  ciiin- 
iiiuii  pleaH  that  the  title  t'a«se<l ;  cotiHider- 
ahle  HtresH  Ix'iii;;  laiil  on  the  nceeptanee  of 
tlie  order,  whiili.  it  was  Haid,  placed  the 
vendors  In  the  relation  of  l)nileeH  to  ihe 
(piantitj  Kold.  'I'hin  was  in  IslO,  In  the 
foljowinj:;  .year  the  case  of.lfKrkHon  v.  An- 
derson, 4  Taunt.  l!4,  was  decided  in  the 
kiim'K  bench.  That  was  an  action  of  tro- 
ver for  r.M'ill  pieces  of  coin  called  Spanisli 
dollars.  Mr.  Fielding,  at  Buenos  A.vres, 
ren)itted  to  Laycock  &  Co..  at  l..ondon. 
Ji47iiii,  and  advised  the  plaintiffs  that  l!)(iu 
of  the  nuinl)er  were  desimied  for  them  in 
payment  for  r;oods  lion^ht  of  them.  Lay- 
cock  &  ("o.  received  the  4700  pieces,  and 
pledired  the  whule  of  them  to  the  defend- 
ant, who  sold  them  to  the  I>aiik  of  I'npr- 
lund.  It  was  held:  1.  Thai  the  letter  of 
advice  was  a  sulliiient  approjiriation  of 
$l'.)(iO  to  the  plaintiffs.  :.'.  Thaf  the  plain- 
tiffs and  defendant  did  not  hecoine  joint- 
tenants  or  tenants  iti  common  of  the  ilol- 
lars.  3.  That  altlioufili  no  specific  dollars 
were  separated  from  the  residue  fur  the 
jilaintiffs,  yet  as  the  defendant  hail  con- 
verted the  whole,  trover  would  lie  for  the 
plaintiffs'  share.  Of  course  the  action  in 
its  nature  directly  involved  the  plaintiffs' 
title,  and  it  was  held  thnt  the  sale  or  ap- 
propriation of  a  part  without  atiysepara- 
lion  was  a  perfect  sal>'.  In  I'lejisants  v. 
Pendleton,  (i  Uaml.  4":!,  the  sale  (omit- 
ting iuimaterial  circumstances)  was  of 
11!)  out  of  123  barrels  of  Hour,  situated  in 
a  warehousi',  all  of  the  same  brand  and 
(luality.  It  was  held  by  the  Viry;iriia 
court  of  appeals,  upon  very  elaborate 
consid'Tation,  and  after  .-i  review  of  all 
the  cases,  that  tlie  title  was  transferred 
by  the  sale.  .See  also  Damon  v.  Osliorn, 
1  Pick.  477;  t'rotoot  v.  Itennett,  2  Couist. 
2.")S.  In  the  last  mentioned,  which  was 
decided  in  this  c(/urt,  the  sale  was  of  43.(JU0 
bricks  in  an  unfinished  kiln  rontainin;?  a 
lartc(  r  ipiantity.  A  formal  possession  of 
the  whole  biick-.vard  was  taken  by  the 
purchaser.  It  was  held  that  he  ac(iuired 
title  to  tlie  4:!,0h0,  altliuii^h  no  separation 
was  made.  In  the  opinion  of  .Jiidtfc 
Strontt,  thecasewns  made  to  tiiin  mainly 
on  a  supposed  delivery  of  tlie  whole  ((uaii- 
tity.  Put,  with  deference,  that  circum- 
stancedoes  not  appear  to  meto  liave  been 
the  material  one,  inasmuch  as  all  the 
bricks  confessedly  were  not  sold.  The  de- 
livery, therefore,  did  not  make  the  sale. 
antl  "if  part  could  not  be  sold  without  be- 
iuK  separated,  I  do  not  see  how  a  formal 
delivery  of  the  whole  brick-yard  could 
cure  tiie  dithcul'y  The  learned  jud;;e 
speaks  of  the  tr;insaction  as  a  ilelivery  of 
the  whole  (piantity  "with  tlie  privileee 
of  selection."  But  assuming,  as  he  did, 
that  tlie  want  of  selection  or  separation 
was  the  precise  ditticnity  to  be  overcome. 
It  is  not  easy  to  see  how  n  privileae  to  se- 
lect could  chanire  the  title  before  the  selec- 
tion was  actually  made.  The  case,  there- 
fore, it  seems  to  me,  can  onl.v  stand  on 
the  Eround  that  tlie  sale  was,  in  its  na- 
ture, con:|)lete:  the  formal  delivery  of  the 
whole  bcinir  doul)tlesK  a  circumstance  en- 
titled to  wei;iht  In  arriving  at  the  inten- 
tion of  the  parties.     The   case  is,  in  short. 


a  HtronK  authority  to  prove  that.  In  saleH 
by  weight,  meiisiire,  or  count,  u  Hepara- 
tion  of  the  part  sold  from  the  iuuhh  In  not 
in  all  cases  a  fund.'imentiil  reiiulsitp. 

BeferriiiK  now  to  cases  where  it  has  been 
held  that  sales  of  this  nencral  nature  were 
incomplete,  it  will  be  fo.ind  that  they  are 
not  essentially  and  necessarily  oppoMod  to 
the  conclusion  tht>t,  in  the  instance  before 
us.  the  title  was  changed,  in  White.  aH- 
simiee.  &c..  V.  Wilks,  ,'>  Taunt.  17(i,  a  mer- 
chant sold  twenty  tons  of  oil  out  of  a 
stock  consisting  of  different  birtte  <|uantl- 
ties  In  different  ciHterns,  and  at  vnrluuH 
warehouses.  The  note  of  sale  did  not  ex- 
press the  quality  or  kind  of  oil  sold,  or  the 
cistern  or  warehouse?  from  which  it  was 
to  be  taken,  and  the  purchaser  did  not 
even  know  wliere  the  particular  oil  lay 
which  was  to  satisfy  the  contract.  Very 
clearly  the  title  could  not  pass  ui>ijn  such 
a  sale;  and  so  ir  was  held,  aithouKh  the 
seller  was  entitled  by  the  contract  to 
charge  "Is.  per  ton  per  week  rent,"  for 
keepii.fj  the  oil.  A  very  different  (juestion 
would  have  been  presenteil  if  the  cistern 
from  which  the  twenty  tjns  were  to  be 
taken  had  been  specified.  The  ninss  and 
quality  would  then  have  been  ascertained. 
•is  it  was,  the  subject  of  the  contract  wnH 
not  identilied  in  an.v  manner.  The  re- 
marks of  the  judire,  evidently  not  made 
with  much  deliberation,  must  be  con- 
strued with  reference  to  the  particular 
facts  of  the  case. 

In  Austen  v.  Craven,  4  Taunt.  044,  there 
was  a  contract  to  sell  20(»  hocslieads  of 
sujrar,  to  be  of  four  d'fferent  kinds  and 
qualities  wliicli  were  specilicd.  It  did  not 
:  appear  that  the  seller,  at  tie  time  of  the 
contract,  had  tlie  su;;ar  on  hand,  or  any 
part  of  it,  and  the  fact  was  assumed  to  be 
otherwise.  Tlie  sale  was,  moreover,  at 
so  much  percn  t.,  requiriim  tliat  the  siiKiir 
should  be  weighed  in  order  to  ascertain 
the  price.  In  these  circumstances  the  case 
was  coiisi<lered  jilninly  distinuulshuhle 
from  WliiteliouKe  v.  Frost,  sn|>ra.  and  It 
I  was  held  that  the  title  iliil  not  pass.  1 
do  not  see  tlie  sli-ilitest  urounil  for  qucH- 
tioniiiE  tlie  decision,  ailhoiiuli,  perhnpH, 
one  or  two  remarks  of  Chief  J  ustice  Mann- 
held  ate  capable  of  a  wider  application 
than  the  facts  of  the  case  would  justily. 
;  Tlie  two  cases  last  mentioned  have  been 
not  uiifn'iiuently  cited  in  various  later 
Kiitflish  and  .\nierlcan  authorities,  which 
need  not  be  particularly  referred  to.  Some 
of  tliese  authorities  m»iy  suCH:est  n  doubt 
whether  the  title  passes  on  a  nieresnle  noto 
by  measure  or  weight  out<if  a  lari:eri|uan- 
tity  of  the  sanie  kind  and  ipiality.  thers 
beiiiK  no  separation  and  no  otiier  circnm- 
Htances  clearly  evincinc  an  Intention  to 
vest  the  title  In  the  purchaser.  It  ih  nn- 
ne.-essnry  now  to  solve  that  ilonlit,  be- 
caiise  none  of  the  decisions  announce  the 
extreme  <Io(trine,  that  where,  in  snch 
leases,  the  parlies  ex iiressly  declare  an  tn- 
I  tention  to  chnniie  the  title,  there  Is  any 
!  lesal  impossiltility  In  the  way  of  that  de 
siun.  Uiion  a  simple  bill  of  sale  of  callims 
of  oil  or  bushels  of  wheat,  nilxetl  with  an 
ascertained  and  dellned  larjier  quantily.lt 
mavormnvnot  be  considered  that  the 
parties   intend  that  the  portion  sold  shall 


494 


KIMIJEP.LY  V.  PATCHIK. 


be  tncaHiirecl  before  the  purchaser  becomes 
invested  with  the  title.  'I'hiit  may  be  rn- 
gartled  as  an  act  remaininjr  to  be  done,  in 
which  l)()th  parties  liave  a  rifrht  to  partic- 
ipate, liut  it  is  surely  competent  for  the 
vendor  to  say  in  terms,  that  he  waives 
that  rif;ht,  and  that  the  purchaser  shall 
become  at  once  the  lesal  owner  of  the 
number  of  fiallons  or  bushels  embraced  in 
the  sale.  It  he  cannot  say  this  effectually, 
then  the  reason  must  be  that  two  men 
cannot  he  owners  of  separate  (juautities 
or  proportions  of  an  luiilistinHuishable 
mass.  That  conclusion  would  be  a  naked 
absurdity,  and  I  have  shown  tliat  such  is 
not  the  law.  In  the  case  before  us  the 
vendor  not  only  executed  nis  bill  of  sale 
professing  to  transfer  UDOO  bushels  of 
wheat,  but,  waiving  all  further  acts  to  be 
done,  in  order  to  complete  the  transac- 
tion, he  acknowledged  himself,  by  another 
instrument,  to  hold  the  same  wheat  in 
store  as  the  bailee  thereof  for  the  pur- 
chaser. If  his  obligations  from  that  time 
were  not  simply  and  precisely  those  of  a 
bailee,  it  is  because  the  law  would  not  suf- 
fer hitn  to  stand  in  that  relation  to  the 
property  tor  the  reason  that  it  was  mixed 
with  his  own.  But  no  one  will  contend 
for  such  a  doctrine. 

1  repeat  it  is  unnecessary  to  refer  to  all 
the  cases,  or  to  determine  between  such 
as  may  api)ear  to  be  in  contiict  with  each 
other.  None  of  them  go  to  the  extent  of 
holding  that  a  man  c.innot,  if  he  wishes 
and  intends  so  to  do,  make  a  perfect  sale 
of  part  of  a  ()uantity  without  actual  sep- 
aration, where  the  mass  is  ascertained  by 
the  contract  and  all  parts  are  of  the  siame 
value  and  undistinguishable  from  each 
other. 

One  of  the  cases,  however,  not  yet  cited, 
deserves  a  brief  consideration,  because  it 
wasdetermined  in  this  court,  and  has  been 
much  relieil  on  by  the  plaintiffs'  cminsel. 
I  refer  to  Gardiner  v.  Snydam,  H  Seld.  ool. 
The  owner  of  Hour  dilivered  it  in  various 
parcels  to  a  wareluiusenian,  and  from 
time  to  time  took  I'eceipts  from  him.  One 
of  these  receipts  was  helil  by  the  defend- 
ants and  others  hy  the  |)laintiffs,  both  par- 
ties having  accepted  and  paid  drafts  on 
the  faith  thereof.  The  defendants'  receipt 
was  the  first  in  point  of  time,  and  was  for 
536  barrels,  being  given  at  a  time  when  in 
fact  there  were  but  2(ll  barrels  in  the 
warehouse,  so  that  it  covered  l-iS.o  nr.ore 
than  were  then  on  hand.  Rut  oth<?r()uan- 
tities  were  sulisequently  delivered  at  the 
warehouse,  all  of  the  same  kind  and  qual- 
ity, and  the  defendants,  in  fact,  received 
by  shipment  to  them,  .500  barrels.  For 
the  conversion  of  this  qnantitj'  they  were 
sued  l)y  the  plaintiffs,  who  had  failed  to 
receive  the  flour  which  their  receipts  called 
for.  It  cannot  fail  to  be  seen  from  this 
statement  that  the  defendants, having  the 
first  receipt  and  receiving  no  more  Hour 
than  it  specified,  were  entitled  to  judg- 
ment by  reason  of  the  |)riority  of  their  ti- 
tle; and  this  ground  ot  decision  is  very 
clearly  stated  in  the  opinion  of  the  chief 
judge.  He  thought  if  the  transfer  of  the 
receipts  could  pass  the  title   to  the  flour. 


notwithstanding  the  mixture  of  all  the 
quantities  together,  that  the  one  held  by 
the  defendants  entitled  them  not  only  to 
the  201  barrels  in  store  when  it  was  given, 
liut  also  to  so  many  barrels  delivered  in 
store  afterwards  as  were  necessary  to 
make  up  their  number.  This  view,  which 
ai)i)ears  to  me  correct,  was  fatal  to  the 
IJlaintiffs'  case,  liut  in  another  aspect  of 
the  controversy,  the  learned  chief  judge 
was  of  ojiinion  that  the  transfer  to  the 
plaintiffs  of  the  receipts  held  by  them 
passed  no  title,  on  the  ground  that  the 
quantities  which  tliey  respectively  covered 
were  all  mixed  together  in  the  storehouse. 
Assuming  the  correctness  of  that  view  — 
wliidi  1  am  constrained  to  question — the 
case  is  still  nniiUe  the  present  one.  The 
transfer  of  a  warehouseman's  receipt, 
given  to  the  owner,  was  certainly  no  more 
than  a  simple  sale  note  of  the  specified 
number  ot  barrels;  and  where,  in  such 
cases,  that  is  the  whcde  transaction  Ite- 
tween  vendor  and  vendee  I  have  already 
admitted  a  doubt,  suggested  by  conflict- 
ing cases,  whether  the  title  passes.  If  the 
owner  of  the  flour  had  held  it  in  his  own 
wari'liouse,  and  liad  not  only  given  a  bill 
of  sale  of  a  portion  of  it,  l>ut  had  himself 
executed  to  the  purchaser  another  instru- 
ment declaring  that  he  held  the  ((uantity 
sold  as  bailee  and  subject  to  order,  then 
the  case  would  have  resembled  the  one 
now  to  be  determined. 

We  are  of  o|>inion,  therefore,  both  upon 
authority  and  clearly  upon  the  principle 
and  reason  of  the  thing,  that  the  defendant, 
under  the  sale  to  Shut  tleworth,  acquired 
a  perfect  title  to  thetiOOO  bushels  of  wheat. 
Of  that  quantity  he  took  possession  at 
Buffalo,  by  a  writ  of  replevin  against  the 
master  of  the  vessel  in  which  the  whole 
had  been  transported  to  that  place.  For 
that  taking  the  suit  was  brought,  and  it 
results  that  the  plaintiff  cannot  recover. 
It  is  unnecessary  to  decide  whetlier  the 
parties  to  the  original  sale  became  ten- 
ants in  common.  If  a  tenancy  in  common 
arises  in  such  cases,  it  must  be  with  some 
peculiar  incidents  not  usually  belonging  to 
that  species  of  ownership.  I  tliink  each 
party  would  have  the  right  of  severing  the 
tenancy  by  his  own  act;  that  is,  the  right 
of  taking  ithe  portion  of  the  mass  which 
belonged  to  liim,  being  accountable  only  if 
he  invaded  the  quantity  which  l)elonged 
to  the  other.  But  assuming  that  the  case 
is  one  of  strict  tenancy  in  common,  the  de- 
fendant became  the  owner  of  (iOOO  and  the 
plaintiffs  of  2-10  parts  of  the  wliole.  As 
neither  could  maintain  an  action  against 
the  other  for  taking  possession  merely  of 
the  whole,  more  clearly  he  cannot  if  the 
other  takes  only  the  quantity  which  be- 
longs to  him. 

The  judgment  must  be  reversed  and  a 
new  trial  granted. 

CRAY  and  GROVER,  J  J.,  dissented; 
.STRONG,  J.,  expressed  himself  as  inclined 
to  concur,  if  necessar.y  to  a  decision,  but 
it  l)eing  unnecessary,  he  reserved  his  judg- 
ment. 

.ludgnient  reversed  and  new  trial  or- 
dered. 


n 


KINGMAN  V.  DENISON. 


497 


KINGMAN  et  al.,  a  Corporation,  v.   DENISON 
ct  al. 

(48  N.  W.  Hep.  2»,  »4  Mich.  608.) 

Supreme  Court  of  Michigan.    Fob.  37,  1891. 

Error  to  circuit  court,  Kent  county; 
Wii-r.iA.M  E.  (jiii)Vi:,  Ju(1k«. 

Rc[)lcviii  l).v  Kiiifjiiiaii  &  f'o.  aKuiiiBt 
William  C.  Dciiisoii  and  the  .McCoriiiick 
Harvesting  Miicliiiie  ('()iui)jiii.v.  There 
was  u  jvKljri'ient  in  defcuduntH'  favor,  and 
plaintiffH  bi-iiig  error. 

Tnfiii.irt  &  Dpnisnn,  for  appellants. 
Sweet  it-  J'erkins,  for  appellee.s. 

EoNO,  J.  On  July  S,  l.SSO,  defendant 
PeniKon  wrote  Hie  plaintiffs  at  Peoria, 
111.,  orderinfr  .^i.iKIO  ixiunds  of  twine.  No 
(leiiliiiyiH  liad  ever  licen  had  between  the 
parties  prior  to  that  time.  The  plaintiffs 
receive<l  the  letter  next  day,  and  at  once 
wrote  Denisoti :  "We  have  entered  your 
order,  an<l  twine  will  ;;;(>  forward  to-mor- 
row." On.July  11th  the  twinewas  nhipiied 
to  \V.  C.  Denison,  firand  Kapid.^.  Mich., 
plaintiffH  taliinj;  shipping  hill  from  the 
railroad  company  there,  and  on  same  day 
Bent  it  to  Denison,  with  statement  of  ac- 
count for  value  of  the  twine.  The  twine 
was  received  at  (Jrand  Kapids  hy  the 
Grand  liapids  &  Indiana  Itailroad  Com- 
pany,.July  17th.  ami  on  theisth  they  tiirneil 
it  over  to  a  teamster,  who  delivered  it  at 
tlie  store  which  was  occui)ie(l  by  Denison 
at  the  time  the  order  was  made.  It  aii- 
pears  that  on  .July '.)th  the  (irand  Hapids 
Savinsrs  Bank  caused  an  attachment  to 
be  levied  upon  Denison's  property.  On 
that  eveniii;;  Denison  jjave  the  bank  a 
chattel  mortsaKe  on  all  the  Roods  in  the 
store  and  at  a  warehouse  there.  !ind  a 
store  situate  at  another  place  outside  of 
(irand  Kapids.  .luly  luth.  Uth,  and  l-'tli 
he  Knve  niorttrn^res  on  the  same  prop- 
erty to  se\eral  other  creditors,  two  of 
them  beins  niven  to  tlie  defendant  the 
McCormick  llarve.-.tin}r  Machine  Com- 
pany. 'J'lie  soods  mortj;:aKed  were  held  in 
the  store  by  the  ajjents  of  the  b.nnk  until 
they  were  sold  under  one  of  the  mort- 
Kases,  wliich  was  about  July  ISth,  at 
which  time  the  defendant  the  McCormick 
Ilarve-stiiiK  Macliine  (.'ompany  bid  the 
Kocxls  in.  an;l  continuefl  to  occupy  the 
Store,  puttinjT  Mr. '  Denison  in  as  its 
asent.  The  McCormick  llarvestin;r  .Ma- 
chine Company  uiortsraKe  contained  a 
clause,  after  a  description  of  the  prop- 
erly mortfrased,  as  follows:  ".And  all 
additions  to  and  sulistitutes  for  any 
and  all  the  above-described  i)roperty." 
On  September  7tli  plaintiffs,  wlio  had  no 
notice  or  knowlcdtte  of  the  chan^jed  con- 
dition of  Mr.  Denison's  affiiirs,  drew  on 
him  at  si;rlit  for  the  amount  of  the  bill. 
This  draft  was  not  jiaid,  and  on  Septeni- 
lierHlh  plaintiffs  wrote  him  for  i)ronipt 
remittance,  wlilcli  was  not  made.  On  Sep- 
tember I'.l,  Iss;),  plaintiffs  brought  replevin 
against  the  defendants  for  the  twine,  lind- 
hif?  about  t)ne-half  of  it ;  the  balance  having 
been  sold  out  of  the  store  by  the  McCor- 
mick Harvesting;  Machine  Com])any.  On 
the  trial  of  the  cause  the  defendants 
waived  return  of  the  property,  and  had 
verdict  and  jndKUient  against  the  plaintiff 

LAW  SALES — -"2 


for  $:!.")! .01,  the  value  of  the  twine  taken, 
and  costs,     i'lalntiffs  brlni^  error. 

Tile  plaintiffs  askid  the  court  toinstruct 
the  jury  that  plaintiffs  were  entitleil  to  u 
verdict;  and  in  the  ninth  reiiucHt  asked  un 
instructionthat  "if  Mr.  Denison  did  not  in 
fact  receive  the  twine  at  his  store,  liut  was 
not  there  when  it  was  diiiveriMl,  and  never 
received  and  accepted  it  for  his  use  in  any 
way,  except  that,  lindinK  it  In  thestore,  liu 
allowed  tin-  niortjrat;ees  to  assume  con- 
trol of  it.  pl.'iintiffs  could  retake  it  an 
airainst  him."  And  in  the  fourteenth  re- 
quest it  was  asked  that  the  jury  lie  instruct- 
ed that  the  .McCormick  Com|iany,as  niort- 
Ka;;ee,  is  in  no  better  piii-itiun  than  Mr. 
Denison.  Its  morliraire  does  not  cover 
this  twine,  nor  is  it  a  b(jii;i  t'nle  purchaser. 
Several  requests  were  also  asked  for  in- 
structions to  the  jury  relatinfi  to  the  In- 
solvency of  Mr.  Denison  at  the  time  of  the 
purchase,  and  his  intent  not  to  iiay  for 
tlie  twine  at  the  time  of  its  purchase,  or  at 
the  time  when  it  was  reci-ived  at  the 
store,  on  tlie  istli  of  July.  These  last- 
named  re<|nests  we  do  not  deem  it  neces- 
sary to  set  out  here  for  an  understanding 
of  the  points  involved.  The  re<iuest8  sot 
out  were  refused  by  the  trial  court,  and 
upon  such  ruling  the  plaintiff  assigns  er- 
ror. Thecoiirt.in  its  charge  to  the  jury, 
stated:  "  I'laintiff  claims  the  ri;jlit  to  the 
posscs.sion  of  these  goods  at  the  time  this 
suit  was  comnienceil  — y'ir.vf,  because  as 
counsel  claims,  the  goods  were  ordered, 
were  purchased,  by  Mr.  Denison  at  a  lime 
wlien  he  was  insolvent,  and  knew  that  he 
was  insolvent, and  hud  no  intention. or  at 
least  no  reasonable  e.xpectation.of  paying 
for  tliem  acconling  to  the  terms  of  the 
contract;  ond  the  plaintiff's  counsel  also 
claims  the  right  of  stoiipage  in  transit. 
All  1  need  to  say  in  regard  to  the  latter 
claim  is  that  I  think  the  right  of  stoppage 
in  transit,  under  tlic  facts  of  this  case  as 
shown  by  the  evidence,  lias  no  applica- 
tion whatever;  there  is  no  such  right  e.\- 
isting.  "  This  part  of  the  charge  relating 
to  the  right  of  stoppage  in  transit  is  as- 
signed as  error.  The  court  was  in  error 
in  refusing  these  requests  to  charire  and 
in  the  charge  as  given.  It  is  not  seriously 
contended  here  but  that,  umler  the  evi- 
dence given  on  the  trial,  the  defendant 
Denison  was  insolvent  at  the  time  the 
goods  were  ordered.  At  least  this  was  a 
(|Uestion  of  fact  which  should  have  been 
submitted  to  tlie  jury:  and.  if  so  found, 
llie  question  of  the  riirht  of  stoppage  In 
transit  was  an  imiiortant  question  in  the 
case.  Tlie  right  of  stopp.-ige  in  transit  Is 
a  right  possessed  by  tlie  seller  to  rons- 
sume  the  possession  of  goods  not  paid  for 
while  on  tluir  wav  to  the  vendee,  in  case 
the  vendee  liecomes  insolvent  before  he 
has  ac()uireil  actual  possession  of  them. 
It  is  a  privilege  allowed  to  the  seller  for 
the  particular  purpose  of  protecting  lilm 
from  the  insolvency  of  the  consignee. 
The  right  Is  one  highly  fa  vored  in  tlie  law. 
being  based  upon  the  plain  rejison  of  jus- 
tice and  eipiitv  that  one  mans  property 
shouhi  not  be  applied  to  the  payment 
of  another  man's  debts.  Gibson  v. 
Carruthers,  .S  Mees.  &  W.  3;?7.  Hut  It  is 
iinqierlv  exercised  only  upon  goocis  which 
are  in   passage   and  are   in   tlie   hands   of 


498 


KIXGMAN  0.  DENISON. 


some  intermedinte  person  bolueen  the 
vendor  and  vendee  in  process,  and  for  the 
t)urpose  of  delivery,  and  this  right  may 
be  exercised  wlu-tlier  tlie  insolvency  exists 
at  the  time  of  the  sale  or  occurs  at  any 
time  l)eforo  actual  delivery  of  the  goods, 
without  the  Unowledfte  of  the  consignor. 
O'Brien  v.  Norris,  1(!  Md.  122;  Reynolds  v. 
Railway  Co.,  4:!  N.  H.  5S0;  Rlurn  v.  Marks. 
21  La.  Ann.  2GS;  Benedict  v.  Scaettle,  12 
Ohio  St.  .'Jir).  This  right  of  stoppage  in 
transit  will  not  be  defeated  by  an  ap- 
parent sale,  fraudulently  made,  without 
(•ousideratiiin,for  tlie  purpose  of  defeating 
the  right.  There  must  be  a  purchase  for 
value  without  fraud,  to  have  this  effect. 
Harris  v.  Pratt,  17  N.  Y.  249.  In  the  pres- 
ent case  it  appears  that  the  goods  ar- 
rived in  Grand  Rapids  July  17th,  and 
were  taken  to  the  store  on  the  ISth.  Mr. 
Denison  was  not  in  the  store  at  the  time 
they  were  taken  in.  Mr  Talford  was  in 
possession  of  all  the  goods  and  of  the 
store  at  this  time  for  all  the  mortgagees, 
and  after  the  sale  under  the  mortgage  the 
Mct'ormick  Company  took  possession,  and 
was  iu  possession  at  tne  time  this  re- 
plevin suit  was  commenced.  The  testi- 
mony tends  to  show  tliat  at  the  time  de- 
mand was  made  upon  the  McCormick 
Company  and  Mr.  Denison  for  the  twine 
Mr.  Uenison  stated  that  he  thought  the 
plaintiff,  having  heard  of  his  financial 
affairs,  would  not  ship  the  twine,  and 
that  he  did  not  kni)w  it  had  liecn  sliipped 
until  it  was  in  the  store;  and  he  was  ver> 
sorry  it  had  come,  und(>r  the  circum- 
stances. The  McCormick  Company 
claimed  that  by  the  terms  of  their  mortgage 
they  were  entitled  to  hold  tlie  twine.  The 
court  was  in  error  in  not  submitting  to 
the  jury  the  question  wliether  the  goods 
Imd  come  actually   to  the  possession  of 


Mr.  Denison.  The  circumstances  tend 
strongly  to  show  that  he  never  had  act- 
ual |)ossession  of  them,  and  never  claimed 
them  as  owner.  He  had  made  the  order, 
and  was  notified  that  thei*  would  be 
shipped;  Init  from  that  time  forward  it 
is  evident  that  he  made  no  claim  to  them. 
The  McCormick  Comiuuiy  claimed  that 
the.v  passed  to  it  under  the  tei-ms  of  its 
mortgage.  It  however,  stood  in  ni)  bet- 
ter position  than  Denison.  If  the  goods 
never  actually  came  into  the  possession 
of  Denison  as  owner,  the  mortgage  lien 
would  not  attach,  even  under  the  clause 
in  the  mortgage  covering  tifter-acnuired 
property.  It  does  not  stand  in  the  posi- 
tion of  a  bomi  tide  purchaser  of  the  prop- 
erty. The  right  of  stoppage  could  not 
be  divested  by  a  jjurchase  of  the  goods 
under  the  mortgage  sale.  The  transit 
hail  not  ended  unless  there  was  actual 
delivery  to  Mr.  Denison.  These  were 
questions  of  fact  for  the  jury,  which 
the  court  refused  to  submit.  If  the  jury 
had  found  that  Denison  was  insolvent  at 
the  time  the  order  was  made,  or  became 
insolvent  at  an.y  time  before  the  claimed 
delivery  of  tlie  goods,  and  that  the  goods 
were  nevei-  actually  delivered  to  tlie  pos- 
session of  Mr.  Denison,  then  the  vendors' 
rights  would  have  been  paramount  to 
any  right  which  the  McCormick  Company 
could  iiave  ac(iuired  at  the  mortgage  sale. 
Underbill  v.  Booming  Co.,  40  Mich.  CdO : 
Lentz  V.  Railway  Co.,  ,')?.  Mich.  444,10  N.  W. 
Rep.  1.38;  AVhite  v.  Mitchell,  38  Mich.  390; 
James  v.Grifiin,2  Mees.&W.  623.  In  the  view 
we  have  taken  of  the  case,  we  think  the 
other  questions  raised  are  unimportant, 
and  we  will  notpass  upon  tliem.  The  judg- 
ment of  the  court  below  must  be  reversed, 
with  costs,  and  a  new  trial  ordered.  The 
other  justices  concurred. 


KIXNEY  V.  McDEKMOTT. 


501 


KINNEY  V.  McDERMOTT. 

(8  N.  W.  Rep.  656,  55  Iowa,  074.) 

Supreme  Court  of  Iowa.    April  20,  ISsl. 

Appeal  from  Buena  Vista   circuit   court. 

TliiH  In  nn  nctioii  of  replevin,  ami  the 
ainoiint  in  controvorHy  Ih  Icsh  tlinn  $10(1. 
Tliero  vv(\8  a  trial  by  jury.  There  woh 
no  conflict  in  the  evidence.  The  court 
iiiwtnicted  the  jury  to  return  a  venliet  for 
the  plaintiff.     Defendant  ap|>calH. 

H.  W.  Weeden,  VVni.  Wart,  and  Rohin- 
8on  &  MilcliriHt.for  ap|>cllant.  C.  D.  Uold- 
aniith,  for  appellee. 

ROTHKOCK.  J.  The  trial  jud^e  made 
the  following  certificate,  upon  which  we 
are  authorized,  under  the  statute,  to  en- 
tertain the  appeal : 

"(1)  On  Sunday  plaintiff  agreed  with 
defendant,  at  the  house  of  the  latter,  to  {live 
defendant  a  horHo  and  S$2'>  in  exchange  for 
a  lioiHe  of  defendant.  TIiIh  was  conHeiit- 
ed  to.  and  on  theHame  day,  purHuant  to 
Haid  agreement,  plaintiff  left  his  horse 
witli  defendant,  and  tooic  the  horse  of  the 
latter  away.  The  money  wa.i  to  l)e  paid 
the  fidlowing  Sunday  at  the  liouse  of 
plaintiff.  On  Tuesday,  following  the  ex- 
change, defendant,  in  the  absence  of  i)lain- 
tiff,  and  without  his  knowledge  or  con- 
sent, returned  to  the  stable  of  the  latter 
the  horse  received  of  him,  and  took  the 
borse  he  let  plaintiff  have  away.  A  day 
ortwo  later  plaintiff  replevied  thehorseso 
taken,  ami  has  since  kept  both  horses,  us- 
inji  the  one  returned  by  defendant,  and 
not  offering  to  return  either  horse  or 
money.  Under  these  facts  can  the  plain- 
tiff recover  in   his  action  of  replevin? 

"(2)  Under  thefncts  hereinbefore  staled, 
can  plaintiff  recover  in  replevin  when  liis 
allege<l  right  of  possession,  under  the  i.s- 
sues  made  in  tlie  pleadings,  depends  upon 
the  ownership  of  the  property? 

"(3)  Is  the  plaintiff  entitled  to  recover 
nnder  the  issues  in  this  action,  and  the 
facts  n»  stated  above?" 

A  contract  made  and  concluded  on  Sun- 
day cannot  be  enforced  by  action.  Pike 
V.  King,  10  Iowa,  ^O.  It  is  illegal,  and 
the  law  in  such  cases  will  leavethe  parties 
where  it  finds  them,  or  rather  where  they 
have  placed  themselves.  If  one  party  sells 
property  to  another  on  Sunday,  and  de- 
livers it,  no  action  will  lie  for  the  price 
agreed  to  be  paid  therefor.  Pike  v.  King, 
supra.  If  tlie  defendant  in  the  action 
had  broughtreplcvin  for  Hiehorse, Instead 
of  taking  liim  by  force,  he  would  have  been 
defeated,  because  he  would  have  lieen  ob- 
liged to  introduce  evidence  to  overcome 
the  presumption   arising    from    i)lnintiff'B 


poBsesHion.  By  tlie  acts  of  tlie  parties  in 
violation  of  la w  the  plaintiri  became  en- 
titled to  the  possession  ol  the  horne.  ThU 
possession  was  such  that  the  defendant 
could  not  have  recovered  by  action  the 
price,  if  H(dd  anil  not  paid  for,  and  coulil 
not  maintain  an  >iction  of  replevin.  He, 
however,  wrongfully  and  by  a  trespasH, 
de[)rived  tlie  plaintiff  of  the  possession. 
The  qnestiijn  is,  will  he  be  allowed  tore- 
cover  liy  force  what  the  law  woiiltl  not 
have  aided  him  to  recover  peacealily?  It 
Is  insisted  by  counsel  for  appellant  that, 
because  the  plaintiff  claims  title  to  the 
horse,  he  was  bound  to  Introduce  evi- 
dence of  such  title,  and  could  only  do  ho 
by  showing  the  Sunday  contract.  But, 
according  to  tlie  certificate  of  tlie  trial 
juilge,  the  plaintiff  was  In  poHsession,  and 
the  defendant,  by  force,  and  without  the 
knowledge  of  the  plaintiff,  removed  the 
horse  from  plaintiff's  stable.  The  ques- 
tion is,  by  what  right  did  the  defendant 
possess  himself  of  the  horse?  The  burden 
was  on  him  to  show  hi^  right.  In  iloing 
so  he  would  necessarily  be  compelled  to 
introduce  thoSunday  contract nsevidence. 

In  Smith  v.  Bean,  1.')  .N.  H.  .")77,  referring 
to  a  contract  of  sale  made  on  .Sunday,  It 
is  said:  "Tlie  transaction  lieing  illegal, 
the  law  leaves  the  parties  to  suffer  the 
consequences  of  their  illegal  acts.  The 
contract  is  void  so  far  as  it  is  attempted 
to  be  made  the  foundation  of  legal  pro- 
ceedings. The  law  will  not  interfere  to 
assist  the  vendor  to  recover  the  price. 
Tlie  contract  is  void  for  any  such  purpose. 
It  will  not  sustain  the  vendee  upon  any 
warranty  or  fraud  in  the  sale.  It  is  void 
in  that  resi)ect.  The  principle  sliows  that 
the  law  will  not  aid  the  vendor  to  re<'over 
the  possession  of  tlie  property  if  he  has 
parted  with  it.  The  vendee  has  the  posses- 
sion as  of  ills  own  property  by  the  assent 
of  the  vendor,  and  the  law  leaves  them 
where  it  finds  them.  If  the  vendor  shoulil 
attempt  to  retake  the  (iropeity  without 
process,  the  law,  flnding  tliat  the  vendee 
had  a  possession  which  could  not  be  con- 
troverted, would  give  a  remedy  for  the 
violation  of  tliat  possession.  "  See,  also. 
2  Parsons  on  Contracts,  TtU.  and  notes. 
The  author  admits  tliere  Is  soiiie  conflict 
of  authority  upon  the  question  whether  a 
vendee  willbe  allowed  to  retain  the  prop- 
erty without  paying  tlie  price.  In  our 
opinion  lie  should,  on  the  ground  that  the 
law  will  leave  the  parties  where  It  Hnils 
them.  It  was  held  In  Pike  v.  King,  su- 
iira.  that  the  plaintiff  could  not  ri-cover 
the  value  of  the  property  aside  from  the 
price  agreed  upon,  or.  In  other  words, 
could  not  recover  upon  the  (|uantum  vale- 
bant. 

Aftirmed. 


KOUXTZ  B.  KIItKPATUICK. 


503 


KOUNTZ  V.  KIRKPATRICK  et  al.  ] 

(72  Pa.  St.  370.)  | 

Supreme  Court  of  Pennsylvania.    Jan.  6,  1S73.     [ 

AKSumimit  by  Joseph  Kirkpntrick  and 
JniiicH  LyoriH,  trailinir  as  Kirkputrick  &' 
lO'i'iiH.  to  tlic  use  of  Freileriek  Kislier  find 
otln-i-H,  truiliiit;  aa  Fiwlier  I'.ros.,  aKaiiiHt 
William  J.  Koiintz,  for  failure  to  duliver  a 
certain  iiuiintity  of  enide  petroleum,  wlieii 
called  upon  to  do  so  Deeeiuber  31,  ls<>'.),  in 
compliance  with  his  contract  previously 
made.  Judnment  forplaintiffa,aud defend- 
ant brings  error,     iieversed. 

Before  THOMI'iSOX,  C.  J.,  and  UKAl), 
ACiNEW,  SHAKSWOOU.and  WILLIAMS, 
J.-  I 

S.  il.  Geyer  and  (j.  Slilras,  .Jr.,  for  plain- 
tiff in  error.  M.  W.  Acheson,  for  defend- 
auts  in  error. 

AG.XE'.V,  J.  The  second,  third,  fifth, 
ei.\th,  seventh,  eif;hth,  eleventh,  twelfth, 
thirteenth,  fourteenth,  filteenth  and  si.\- 
leenth  error.-s.  are  not  well  ai?si(;ned.  for 
all  the  un.'^wers  of  the  court  to  the  points 
were  omitted.  Wheo  u  court  simply  re- 
fuses a  point,  the  eiror  is  well  assijined 
by  reeitin;^  the  point,  and  stating  that  it 
was  refused.  But  when  the  judt;e  an- 
swerji  specially,  in  onler  to  introduce  a 
gualitiiation  he  deems  necessary  to  make 
his  instruction  correct,  the  answer  must 
lie  recited  as  well  as  the  point.  We  shall 
not  decline  considerinK,  however,  all  the 
important  questions;  and  in  order  to  dis- 
cuss them,  we  may  state  succinctly  the 
nature  of  the  ca-^e.  On  the  7th  of  .Tune 
isci'.l,  Kountzsold  to  Kirkputrick  &  Lynn, 
two  thousand  barrels  of  ci'ude  petroleum, 
to  he  delivere<l  at  his  option,  at  any  time 
from  tlie  date,  until  the  aist  of  December 
iMi'.t,  lor  cash  on  delivery,  at  tliirteen  and 
a  iialf  cents  a  gallon.  On  the  L'lth  of  .Inne 
iMi'.i,  Kirkiiatrick  and  Lyon  assigned  this 
contract  to  Fisher  &  Brothers.  Kount/. 
failed  to  deliver  the  oil.  He  defends  on 
the  ground  that  Kirkfiatrick  &  Lyons, 
and  others  holding  like  contracts  for  de- 
livery of  oil,  en  tered  into  a  comtnnntion 
to  raise  the  price,  by  buyin>^  uii  lar^e 
quantitii'S  of  oil.  and  holilin;^  it  till  the  ex- 
piration of  the  year  l^(i9,  and  thus  to  com- 
pel the  sellers  of  oil  on  option  contracts, 
to  pay  a  heavy  difference  for  nondelivery. 
Fisher  &  Brothers,  the  assij;nees  of 
Kountz"s  contract,  were  not  in  the  com- 
bination, and  the  principal  questions  are 
whether  they  are  affected  by  the  acts  of 
Kirki)Htrick  &,  Lyons,  subsequent  to  the 
assiuniiient ;  whether  notice  ol  the  as- 
Hii;nment  to  Kountz  was  necessary  to 
protect  them,  and  what  is  the  true  meas- 
ure of  damages.  The  court  below  held 
that  Kisher  &  Brothers,  as  assiirnees  of 
the  contract,  were  not  affected  by  the  acts 
of  Kirkpatrick  «&  Lyons,  as  niemliers  of 
the  con\bination  in  the  followin^i  Octolier 
and  sulisei|uently,  and  that  notice  in  this 
case  was  not  essential  to  the  protection  of 
Kountz. 

The  common-la  w  rule  as  to  the  assign- 
ability of  clioses  in  action  no  lont^er  pre- 
vails, but  in  equil.v  the  assitrnce  is  looke<l 
upon  as  the  tiue  owner  of  the  chose.     He 


may  sot  off  the  demand  nshjaown:  Nfur- 
^an  V.  liaiik  of  .Ni>rlh  Aii.erlcu,  x  S.  &  It. 
7:i;  I'.amsey'rt  Appeal.  1!  Watts  '2'JH.  The 
assiiinee  takes  the  chose  subject  to  the 
pxistin;;  equities  between  the  oriuinal  par- 
ties before  assiLfnment,  and  also  to  pay- 
ment and  otherdefenees  to  the  Instrument 
itself,  after  the  assitrnnient  and  In-fore  no- 
tice of  it;  but  he  cannot  be  affected  by  col- 
lateral transactions,  secret  trusts,  or  acts 
unconnected  with  the  subject  of  the  con- 
tract: Davis  v.  I!arr,  !l  S.  iSc  I!.  i:t7;  tteck- 
ley  V.  Erkert,  3  Barr  L".c.>;  Mott  v.  (lark,  !» 
Id.  .•{!);»;  Tay:or  v.  (litt.  10  Iil.  JlN;  North- 
ampton Bank  V.  lialliel,  K  W.  &.  H.  31s; 
Corser  v.  Craig,!  Wash.  (-'.  C.  K.  4-i;  1 
Parsons  on  Cont.  1U:1,  IOC;  2  Story  on 
t'jtnt.,  §:!9(;,  n. 

The  act  of  Kirkpatriek  &  Lyons,  rom- 
(ilained  of  as  members  of  an  unluMful 
combination  to  rai-se  the  price  of  oil,  woH 
loiiK  suitsequent  to  their  assignment  of 
Kountz's  contract,  and  was  a  mere  tort. 
The  contract  was  afli-cted  only  by  its  re- 
sults as  an  independent  act.  It  does  not 
seem  just,  therefore,  to  visit  this  effect 
up<m  Fisher  &  Brothers,  the  antecedent 
assignees.  The  act  is  wholly  rclluternl  to 
the  ownershipof  the  chose  iiself.and  there 
is  nothing  to  link  it  to  the  chose,  so  as  to 
bind  the  nssi>?nors  and  assignees  to- 
fjelher.  After  the  assiijnmeri t,  there  belnjt 
no  Kunranty,  the  assi;;nors  had  no  inler- 
est  in  the  performance  of  this  )iartlcular 
contract,  and  no  motive,  therclore.arisinK 
out  of  it  to  raise  tlie  priceon  Kountz.  The 
acts  of  Kirkputrick  &  Lyons  seem, 
tlierefore,  to  have  no  greater  or  other 
bearinj;  on  this  contract  than  the  acts  of 
any  otiier  members  of  the  combination, 
who  were  strangers  to  the  contract. 

In  regard  to  notice  of  the  assignment  to 
Kountz.  it  is  argued,  that  having  had  no 
notice  of  it,  if  lie  knew  of  the  consplrac.v 
to  raise  the  prii-e  of  <mI,  anil  tluis  td  oflect 
his  contract,  and  that  Kirkpntrick  & 
Lyons  were  parties  to  it,  he  miglit  have 
relied  on  that  fa;t  as  a  defence,  and  refused 
to  deliver  the  oil.  and  claimed  on  the  trial 
a  verdict  for  merely  nominal  damages  for 
his  breach  of  his  contract.  Possibly  lu 
such  a  special  case,  want  of  notice  might 
have  constituted  an  equity,  but  the  an- 
swer to  this  case  is.  that  no  such  point 
was  mode  in  the  court  below,  ami  thero 
iloes  not  seem  to  be  aiy  evidence  that 
Koiititz  knew  of  the  conspiracy,  and  Kirk- 
patrick &  Lyoiiss  privity,  and  relying  on 
these  facts,  desisted  from  purchasing  oil 
to  fulfil  his  contract  with  them.  As  the 
case  stood  before  tlieeourt  below,  we  dis- 
cover no  error  in  the  answers  of  the 
learned  judge  on  this  |.art  of  It. 

The  next  (luestion  is  upon  the  proper 
measure  tif  damages.  In  the  sale  of  chat- 
tels, the  general  rule  Is,  that  tlie  inensHre 
is  the  difference  between  tliecoiilract  price 
and  the  market  value  of  the  article  at  the 
time  and  place  of  delivery  under  the  con- 
tract. It  is  unneres..ary  to  cite  authority 
for  tills  well  est;iblislied  rule,  but  as  this 
case  ri  Iscs  a  novel  and  ixtraordinary 
question  between  the  true  ni;irkrt  value  of 
the  article, anil  a  stimulated  market  price. 
Treated  bv  artilicial  and  fri.udul'nt  prac- 
tircs.  it  is"  necessary  to  Mx  the  true  inenn- 
ing  of   the   rule   itself,  before   wo  can    ap- 


504 


KOUNTZ  V.  KIRKPATRICK. 


proficli    the    real    question.      Ordinnrily, 
when  an  article  of  sale  is   in    the   market, 
and  has  a  market  value,  there  is  no  dil't'er- 
ence   between   its    value   and    the   market 
price,  and  the  law  adopts  the  latter  as  the 
proper  evidence  of  the  value.     This  is  not, 
howevtr,    because   value    and     price    are 
really  convertible  terms,  but  only  because 
they  are  ordinarily  so  in   a  fair  market. 
The  primary  mennins:  of  "  vnlue"is  worth, 
and  tliis  worth  is  made  up  of  the  useful  or 
estimable  qualities  of  the  tliinu;:    See  Web- 1 
ster's      and      Worcester's       Dictionaries,  i 
"Price,"  on    the   other   hand,   is   tlie   sura! 
in   money   or   other  equivalent   set   upon  ] 
an    article  b.v  a  seller,  which    he   demands  j 
for  it:    Id.    Value  and   price  are,   there- i 
fore,   not    synon.vmes,   or    the    necessary! 
equivalents   of  each    other,    though   com- j 
mouly,  market  value  and  market  price  are  i 
legal  equivalents.     When  we  examine  the  j 
authorities,  we  find  also  that  the  most  ao  | 
curate    writers    use    the    phrase    market' 
value,  not   market   price.     Mr.   Sedgwick,  i 
in  his   standard  work  on    the   Measure   of  i 
Dama!^es,4th  ed.  p.2G0,says  :   "  Where  con- 
tracts for  the  value  of  chattels  are  broken  1 
by  the  vendors  failing  to   deliver  property  I 
accordinft   to  the    terms  of  the  bargain,  it 
seems  to  be  well  settled,  as  a  jjeneral  rule,  [ 
both  in  England    and   the   United   States, 
that  the  measure  of  damages  is  the  differ- 
ence between  the  contract   price   and    the 
market  value  of  the  article  at  the  time  it 
should  bedelivered  upon  the  ground  ;  that 
this   is    the   plaintiff's  real   loss,  and    tliat 
with  this  sum,  he  can  go  into  the  market 
and  supiily  himself  with  the  same   article 
from     another    vendor."      .Judge    Rogers 
uses  the  same  term  in  Sinethurst  v.  Wool- 
ston,   .')   W.  &   S.  109:    "The   value   of   the 
article  at  or  about  the  time  it   is  to  be  de- 
livered, is   the   measure   of   damages   in  a 
suit  by  tlie  vendee  against   tlie  vendor  for 
a   breach    of  the  contract."     So  said  C.  J. 
Tilghraan,  in  Girard  v.  Taggart,  ,5  S.  &  K. 
32.     Judge   Sergeant,  also,  in   O'Conner  v. 
Forster,  lU  Watts  422,  and  in  Mott  v.  Dan- 
forth,   6    Id.   3(IS.     But   as    eren    accurate 
writers   do   not   alwaj's    use    words   in   a 
precise  sense,  it  wou'd   be   unsatisfactory 
to   rely  on    the  common   use    of   a    word 
only,  in  making  a  nice  distinction  between 
terms.     It  is   therefore   proper    to   inquire 
into  the  true  legal  idea  of  damages   in  or- 
der to   determine  the   proper   definition  of 
the  term    value.      Except   in    those  cases 
where  oppression,  fraud,  malice  or  negli- 
gence enter  into  the  question,"  the  declared 
object  (says  Mr.  Sedgwick,  in  his  work  on 
Damages)  is  to  give  compensation    to  the 
party    injured    for    the    actual    loss    sus- 
tained."   4th  ed.,  pp.  28,   29;  also,    pp.  3(i, 
37.     Among  the  many  authorities  hegives, 
he  quotes  the   language  of  C.  J.  Sliipt)en, 
in  Bussy  v.  Doualilson,  4   Dallas  20G.     "  .\s 
to  the  assessment   of   damages  (said    he), 
it   is   a   rational   and  legal  principle,  that 
the  compensation  should  be  equivalent  to 
the  injury."  "The  rule,"  said  C.  J.Gibson, 
"is  to  give  actual  compensation,  bj"  grad- 
uating the  amount  of  the  damages   exact- 
ly to  the  extent  of  the  loss.  "    "The  meas- 
ur  J  is  the  actual,  not  the  speculative  loss:" 
Forsvth  v.  Palmer,  2  Harris,  97.  Thus,  com- 
pensation   being    the   true   purpose  of  the 
law,   it   is   obvious   that    the   means    era- 


ployed.  In  other  words,  the  evidence  to  as- 
certain compensation,  must  be  such  as 
truly  reaches  this  end. 

It  is  equally  obvious,  when  we  consider 
Its  true  nature,  that  as  evidence,  the 
U'arket  price  of  an  article  is  onli-  a  means 
of  arriving  at  compenshtion  ;  it  is  not  it- 
self the  value  of  the  article,  but  is  the  evi- 
dence of  value.  The  law  adopts  it  as  a 
natural  inference  of  fact,  but  not  as  a  con- 
clusive legal  presumption.  It  stands  as  a 
criterion  of  value,  btcause  it  is  a  con)mon 
test  of  the  ability  to  purchase  the  thing. 
But  to  assert  that  the  price  asked  in  the 
market  for  an  article  is  the  true  and  only 
test  of  value,  is  to  aliandon  the  proper 
object  of  damaires,  viz.,  compensation,  in 
all  those  cases  wherethe  market  evidently 
does  not  afford  the  true  measure  ot  value. 
This  thought  is  well  expressed  by  Lewis, 
C.  .1.,  in  Bank  of  Montgomery  v.  Reese,  2 
Casey  !•!(>.  "The  paramount  rule  in  as- 
sessing damages  (he  says),  is  that  every 
person  unjustly  deprived  of  his  rights, 
.should  at  least  be  fully  compensated  for 
the  injury  he  sustained.  Where  articles 
tiave  a  determinate  valueand  an  unlimited 
production,  the  general  rule  is  to  give  their 
value  at  the  time  the  owner  was  dei)rived 
of  them,  with  interest  to  the  time  of  ver- 
dict. This  rule  has  been  adopted  because 
of  its  convenience,  and  because  it  in  gen- 
eral answers  the  object  of  the  law,  which 
is  to  compensate  for  the  injury.  In  rela- 
tion to  such  articles,  the  supply  usually 
keeps  pace  with  the  demand,  and  the  fluc- 
tuations in  the  value  are  so  incousideraiile 
as  to  justify  the  courts  in  disregarding 
them  for  the  sake  of  convenience  and  uni- 
formity. In  these  cases,  the  reason  why 
the  value  at  the  time  of  conversion,  with 
interest,  generally  reaches  the  justice  of 
the  case,  is  that  when  the  owner  is  de- 
prived of  the  articles,  he  may  purchase 
others  at  that  price.  But  it  is  manifest 
that  this  would  not  remunerate  him  where 
the  article  could  not  be  obtained  else- 
where, or  where  from  restrictions  on  its 
production,  or  other  cause's,  its  price  is 
necessarily  subject  to  considerable  fluctua- 
tion." This  shows  that  the  market  price 
is  not  an  invariable  standard,  and  that 
the  converse  of  the  case  then  before  Judge 
Lewis  is  equalli'  true— that  is  to  say- 
when  the  market  price  is  unnaturally  in- 
flated by  unlawful  and  fra.udulent  prac- 
tices, it  cannot  be  the  true  means  of  as- 
certaining wliat  is  just  compensation. 
It  U  as  unjust  to  the  seller  to  give  the 
purchaser  more  than  just  compensation, 
as  it  is  to  the  purchaser  to  give  him  less. 
Right  upon  this  point,  we  have  the  lan- 
guage of  this  court  in  (he  case  of  a  refusal 
bv  a  purchaser  to  accept:  Andrews  v. 
Hoover,  S  Watts  240.  It  is  said:  "The 
jury  is  bound  by  a  measure  of  damages 
where  there  is  one,  but  not  always  by  a 
particular  means  for  its  ascertainment. 
Now  the  measure  in  a  case  like  the  pres- 
ent, is  the  difference  between  the  price  con- 
tracted to  be  paid  and  the  value  of  the 
thing  when  itought  to  have  been  accepted  ; 
and  though  a  resale  is  a  convenient  and 
often  satisfactory  means,  it  does  not  fol- 
low that  it  is,  nor  was  it  saii  in  Girard  v. 
Taggart,  to  be  the  only  one.  On  the  con- 
trary, the  propriety  of  the  direction  thej-e. 


KOUXTZ  0.  KIltKPATRICK. 


505 


that  the  jury  wero  not  hound  liy  it,  if  they 
could  find  another  more  in  accordance 
Willi  tlic  justice  of  llie  cawe,  HCfiiiH  to  have 
liecn  adinilti'd  ;  the  very  tiling  coniplairied 
of  here."  Judfje  Stronjr  took  the  Hame 
view  in  Trout  v.  ICunncdy,  11  Wright  3'J3. 
That  WMH  the  cane  <>{  a  trcspaHHiT,  and 
the  jury  had  been  told  that  the  plaintiff 
was  entitled  to  the  just  and  full  value  of 
the  property,  and  if  at  the  time  of  (he 
tresiiass  the  tiinrket  was  depressed,  too 
much  importance  was  not  to  he  ;jiven  to 
that  fact.  "If  (says  JudKC  Strong)  at 
any  particular  time,  there  he  no  market 
demand  for  aiiartii-le.it  Is  not  of  ccjurse 
on  that  account  of  no  value.  What  a 
thiuK  will  hrjiijj  in  the  market  at  a  K'^en 
time,  is  perhaps  the  mcHsurc  of  its  value 
then;  hut  it  Is  not  the  only  one. "  These 
cases  plainly  teach  that  value  and  market 
price  are  not  always  convertihle  terms; 
and  certainly  there  can  l)e  no  difference  in 
justice  or  law,  in  an  unnatural  depression 
and  an  unnatural  exaltation  in  the  market 
price — neither  is  the  true  and  only  meas- 
ure of  value. 

These  Reneral  principles  in  the  doctrine 
of  damaiies  and  authorities,  prove  that 
an  inflated  speculative  innrket  price,  not 
the  result  of  natural  causes,  hut  of  artifi- 
cial means  to  stimulate  prices  liy  unlawful 
corabinntions  for  the  pur(»oses  of  ;tain, 
cannot  he  a  leKititiiate  means  of  estiinat- 
ing  just  compensation.  It  nives  to  the 
purchaser  more  than  he  ou^lit  to  have. 
and  compels  theseller  to  pay  more  than  ho 
ought  to  give,  and  it  is  therefore  not  a 
just  criterion.  There  is  a  case  in  our 
own  state,  hearing  strongly  on  this 
|)oint:  Blydenhurgh  ct  al.  v.  Welsh,  Hald- 
win's  lU'p.  331.  .Judge  lialdwin  had 
charged  the  jury  in  these  words:  "  If  yo-j 
are  satlsMed  from  the  evidence,  that  there 
was  on  that  day  a  fi.\ed  price  in  the 
market,  you  must  he  governed  hyit;  if 
the  evidence  is  doulitful  as  to  the  (irice, 
and  witnesses  vary  in  their  statements, 
you  must  adopt  that  which  you  think 
best  accords  with  the  proof  in  the  case." 
In  granting  n  new  trial..Iudge  Ilopklnsou 
said:  "It  is  the  prici — the  market  price— 
of  the  article  that  is  to  furnish  the  measure 
of  damages.  Now  what  is  the  price  of  a 
thing,  particularly  the  market  price?  We 
consider  it  to  be  the  value,  the  rate  at 
which  the  thing  Is  sold.  To  make  a 
market,  there  must  he  buying  and  selling, 
purchase  and  sale.  If  the  owner  of  an 
article  holds  it  at  a  jirice  which  nobody 
will  give  for  it,  can  that  he  said  to  be  lis 
market  value?  -Men  sometimes  put  fan- 
tastical prices  upon  their  piopeity.  For 
reasons  personal  ami  peculiar,  they  luay 
rate  it  n.uch  jihove  what  any  one  would 
give  for  it.  Is  that  the  value?  Kurther, 
the  holders  of  an  article,  Hour,  for  In- 
stance, nnler  a  falsi'  rumor,  which,  if  true, 
woiilil  augment  its  value,  may  suspend 
tlieii-  sales,  or  put  n  price  upon  it,  not  nc- 
rording  to  Its  value  in  the  actual  state  of 
the  market,  tint  according  to  what  in 
their  opinion  will  be  its  market  price  or 
value,  provided  the  rumor  shall  |irove 
to  be  true.  In  such  a  case,  it  is  clear,  that 
the  asking  price  is  not  the  worth  of  the 
thing  on  (he  given  day.  lint  what  it  is 
Biipposed  it  will  be  worth  at  a  future  day, 


if  the  contingency  shall  happen  which  Ih 
to  give  It  this  additional  value.  To  take 
such  a  price  at  the  rule  of  dHmoges,  is  (o 
make  the  d.  fenduiit  pay  what  in  truth 
never  was  the  value  of  the  article,  ami  to 
give  to  the  plaintiff  n  profit  l)y  a  breach 
of  the  contract,  whhh  he  never  would 
have  made  hy  its  performance." 

The  case  of  suspended  sales  upon  a 
rumor  tending  to  enhance  the  price,  put 
oy  Judge  liopkinson,  hears  no  compari- 
son to  the  case  alleged  here,  where  a  com- 
bination is  intentionally  formed  to  liuy 
up  oil,  hold  It  till  the  year  Is  out,  and  thus 
force  the  market  price  up  purposely  to 
affect  e.xlHting  contracts,  and  comi>el  the 
sellers  to  pay  heavy  dnmnges  for  non- 
fulfilment  of  their  l)argalns.  In  tha  same 
case.  Judge  liopkinson  further  said:  "We 
did  not  intend  that  they  (the  jury)  should 
g<j  out  of  the  limits  of  the  market  iirice, 
nor  to  take  as  that  price  whatever  the 
holders  of  the  coffee  might  choo.<<e  to  ask 
for  it;  substituting  a  fictitious,  unreal 
value,  which  nobody  would  give,  for  that 
at  wliich  the  article  might  be  bought  or 
sold."  "In  determining,"  says  an  emi 
nent  writer  on  contracts,  "what  is  the 
market  value  of  property  at  any  particu- 
lar time,  the  jury  may  sometimes  take  a 
wiile  range;  for  this  Is  not  always  ascer- 
tainable by  precise  facts,  but  must  Home- 
times  rest  on  opinion;  and  it  would  seem 
that  neither  party  ought  to  gain  or  lose 
by  a  mere  fancy  price,  or  an  inflated  and 
accidental  value,  sudilenly  |)ut  in  force  by 
some  speculative  movenient,  and  as  sud- 
denly jtassing  away.  The  (|uestion  of 
damages  l>y  a  market  value  is  pirullurly 
one  for  a  jury:"  I'arsons  on  Contracts, 
vol.  2.  (1.  4SJ,  ed.  ls.'>7.  In  Smith  v.  lirlf- 
fith,  :!  Hill  3:!7-s.  C.  J.  Nelson  said  :  "  I  ad- 
mit that  a  mere  speculating  price  of  the 
article,  got  up  liy  the  contrivance  of  a  few 
interested  dealers,  is  not  the  true  test. 
The  law,  in  regulating  the  measure  of 
damages,  c<intemplates  a  range  of  the 
entire  cnarket,  and  the  average  of  prices, 
as  thus  found,  running  through  a  reason- 
able period  of  time.  Neither  a  sudden  and 
transient  inflation,  nor  a  depression  of 
(irices.  should  control  the  question.  These 
are  often  accidental,  promoteil  hyinteivst- 
ed  and  illegitimate  combinations,  for  te'u- 
porary,  special  and  sellish  oliji-cts,  inile- 
pendent  of  the  objects  of  lawful  com- 
merce; a  forced  and  violent  perversion  <if 
the  laws  of  trade,  not  within  the  contem- 
plation of  the  regular  dealer,  and  not  de- 
serving to  he  regarded  as  a  iiroper  Imsis 
i:poii  which  to  deteriuine  the  valne.  when 
the  fact  becomes  niateriul  in  the  ndniii.is- 
tration  of  justice."  I  may  dose  the»e 
sayings  of  eminent  jurists  with  the  lan- 
guage of  Chief  .lustice  (ilbson,  upon  stock- 
jobbing contracts;  Wilson  V.  Davis,  fi  \V. 
&S.  r>l':!:  "To  have  stipulated. "  says  he. 
"for  n  right  to  recrulton  seiiarateaccount, 
would  have  given  to  the  agn-ement  iia 
appearance  of  trick,  like  those  of  stock- 
jobbing contrac(H,  to  deliver  n  given  num- 
ber of  shares  at  a  certain  day.  In  which 
the  seller's  performance  has  het'n  fore- 
stalled hy  what  is  called  cornering;  In 
other  words,  buying  up  all  the  (Linting 
shares  in  the  market.  Th-se  contracts, 
like  other   stock-jobbing   transactions,  lo 


506 


KOUNTZ  V.  KiniCPATRICK. 


which  parties  deal  upon  honor,  are  seldom 
subjected  to  the  test  of  judicial  experi- 
iiieut,  but  tliey  would  necessarily  be  de- 
clared fraudulent." 

Without  adding  more,  1  think  it  is  con- 
clusively shown  that  what  is  called  the 
inarlvet  price,  or  tlifi  quotations  of  the 
articles  for  a  given  day,  is  not  always 
tlie  only  evidence  of  actual  value,  but  that 
tlie  true  value  may  be  drawn  from  othei 
sources,  when  it  is  shown  that  tlie  price 
for  tlie  iiarticular  day  liad  been  unnat- 
urally inflated.  It  remains  only  to  ascer- 
tain whether  the  defendant  gave  such  ev- 
idence as  to  require  thecourt  to  submit  to 
tlie  jury  to  ascertain  and  determine  the 
fair  market  value  of  crude  oil  per  gallon, 
on  the  Hist  of  December  INf!!!,  as  demand- 
ed by  the  defendant  in  his  fifteenth  point. 
There  was  evidence  from  whicli  the  jury 
might  have  adduced  the  following  facts, 
viz.:  That  in  the  month  of  October  l^iOH, 
a  number  of  persons  of  large  capital,  and 
amongthem  Kirkpatrick  &  Lyons,  com- 
bined together  to  purchase  crude  oil,  and 
hold  it  uutil  the  close  of  the  year  1869; 
that  these  persons  were  the  holders,  as 
purchasers,  of  a  large  number  of  sellers' 
option  contracts,  similar  to  the  one  in 
suit,  that  they  bought  cdl  largel.v,  and 
determined  to  hold  it  from  the  market  uu- 
til the  year  1870  before  selling:  that  oil,  in 
consequence  of  this  combination,  ran  up 
in  price,  in  the  face  of  an  increased  sup- 
ply, until  the  31st  day  of  December  ISGlt, 
reaching  the  price  of  seventeen  to  eighteen 
cents  per  gallon,  and  then  suddenly 
dropped  as  soon  as  theyearclosed.  Major 
Frew,  one  of  the  number,  says  :  "It  was 
our  purpose  to  take  the  oil,  pay  for  it, 
and  keep  it  until  January  1st  1870,  other- 
wise we  would  have  been  heading  the 
market  on  ourselve.s.  Mr.  Long  says 
that  on  the  3d  of  January  1870  he  sold  oil 
to  Fi"her  &  Brother  (the  plaintiffs)  at 
thirteen  cents  a  gallon,  and  could  And  no 
othe'"  purchaser  at  that  price.  Several 
witnesses,  dealers  in  oil,  testify  that 
they  knew  of  no  natural  cause  to  create 
9uch  a  rise  in  price,  or  to  make  the  dif- 
ference in  price  from  December  to  Jan- 
uary.    It  was   testified,  on   the  contrary, 


that  the  winter  production  of  oil  was 
gre.'iter  in  Deceml)er  1809  than  in  former 
years  liy  several  thousand  barrels  per  day, 
a  fact  tending  to  reduce  the  price,  when 
not  sustained  by  other  means.  Mr.  Benn 
says  he  knew  no  cause  for  the  sudden  fall 
in  iirice  on  the  1st  January  1870,  except 
tliat  tlie  so-called  combination  ceased  to 
buy  at  the  last  of  December  ISGD. 

It  was,  therefore,  a  fair  question  for  the 
jury  to  determine  whether  the  price  which 
was  <lenianded  for  oil  on  the  last  day  of 
December  18()'J  was  not  a  fictitious,  unnat- 
ural, inflated  and  temporarj-  price,  the 
result  of  a  combination  to  "bull  the 
market,"  as  it  is  termed,  and  to  compel 
sellers  to  pay  a  false  and  swcdien  jirice  in 
order  to  fulfil  their  contracts.  If  so,  then 
sucli  price  was  not  a  fair  test  of  the  value 
of  the  oil,  and  the  jury  would  be  at  libert.v 
to  determine,  from  the  iirices  before  and 
after  the  day,  and  from  other  sources  of 
information,  the  actual  market  value  of 
the  oil  on  the  Slst  of  December  ISU'J.  Any 
other  cause  would  be  unjust  and  injurious 
to  fair  dealers,  and  would  enable  gam- 
blers in  the  article  to  avail  themselves  of 
their  own  wrong,  and  to  wrest  from  hon- 
est dealers  the  fruits  of  their  business.  It 
cannot  be  possible  that  a  "corner,"  such 
as  took  place  a  few  weeks  since  in  the 
market  for  the  stock  of  a  western  railroad 
company,  where  shares,  worth  in  the  or- 
dinary market  about  sixty  dollars  each, 
were  by  the  secret  operations  of  two  or 
three  large  capitalists,  forced  up  in  a  few 
days  to  a  price  over  two  hundred  dollars 
a  share,  can  be  a  lawful  measure  of  dam- 
ages. Men  are  not  to  be  stripped  of  their 
e^itates  by  such  cruel  and  wrongful  prac- 
tices; and  courts  of  justice  cannot  so 
wholly  ignore  justice  as  to  assume  such  a 
false  standard  of  compensation.  Our 
views  upon  the  effect  of  the  attidavit  of 
defence,  on  which  the  learned  judge  in  a 
great  measure  rules  the  question  of  dam- 
ages, will  be  expressed  in  the  case  of 
Kountz  V.  The  Citizens'  Oil  Refining  Co., 
[72  Pa.  St.  302.]  in  an  opinion  to  be  read 
immediately. 

Judgment  reversed,  and  a  venire  facias 
de  novo  awarded. 


i 


LEE  c.  GRIFFIN. 


509 


LEE  V.  GUIFFIN. 

(1  Best  &  S.  272.) 

Queen's  Bench.    May  9,  ISCl. 

Declaration  at;ai"st  the  defendant,  as 
the  executor  of  one  FranceM  1'.,  for  t;oodH 
barKained  anil  Hold,  KoodH  Hold  and  de- 
livered, and  for  work  and  laltor  dune  and 
materials  iirovidcd  l).v  the  i)laiiitiff  a8  a 
Kurneoii-dentlHt  for  the  Haid  FraneeM  P. 

I'k'ii,  that  theHaid  Franeee  I'.neverwuH 
indelited  as  allesi-Ml. 

The  action  was  hroiight  to  reeovcr  the 
Huin  of  £-1  for  two  nets  of  artificial  teeth 
ordered  by  the  deceased. 

At  the  trial,  before  Crompton,  .1.,  at  the 
BittlnuH  for  MiddleHex  after  Michaelmas 
term,  IfSdU,  it  was  proved  by  the  plaintiff 
that  he  had,  in  [tiirsuance  of  an  or<ler  fioni 
the  deceased,  prepared  a  model  of  her 
mouth,  and  made  two  sets  of  artilicial 
teeth;  as  HO(»n  as  they  were  ready  he 
wrote  a  letter  to  the  deceased,  requestin}? 
her  to  niipoint  a  day  when  he  could  see 
her  for  the  purpose  of  fittinj"  them.  To 
this  conimiinication  the  deceased  replied 
as  folio wk: — 

"My  Dear  Sir, — I  regret,  after  your  kind 
effort  to  oblige  me,  my  health  will  prevent 
my  taking  advantage  of  the  early  day.  I 
fear  I  may  not  be  able  for  some  days. 
Yours,  .»ic..  Frances  I*." 

Shortly  after  writinir  the  above  letter 
Frances  P.  died.  On  these  fa<'ts  the  de- 
fendant'scounselcontended  that  the  plain- 
tiff ought  to  be  nonsuited,  on  the  ground 
that  there  was  no  evidence  of  a  delivery 
and  acceptance  of  the  goods  by  the  de- 
ceased, nor  any  memoiandUMi  iti  writing 
of  a  contract  within  the  meaning  of  the 
17th  section  of  the  statute  of  frauds,  l'!) 
(  ar.  2,  c.  o,  and  the  learned  judge  was  of 
that  opinion.  The  plaintiffs  counsel 
then  contended  that,  on  the  authority  of 
Clay  v.  Yates.'  the  [jlaintiff  conhl  recover 
in  the  action  on  the  count  for  work  and 
labor  done,  and  materials  provided.  The 
learned  judge  declined  to  nonsuit,  and 
ilirected  a  verdict  for  the  amount  claimed 
tobeentereil  for  the  plaintiff,  with  leave 
to  the  defendant  to  move  to  enter  a  non- 
suit or  verdict. 

In  Hilary  term  following  a  rule  nisi  hav- 
ing been  obtained  accordingly, 

Patchett  now  shewed  cause.  (Jriflits,  in 
support  of  the  rule,  was  not  called  upon 
to  argue. 

CHOMPTOX,  .1.  I  think  that  Ibis  rule 
ought  to  be  made  absolute.  On  the  sec- 
ond point  I  am  of  the  same  opitiion  as  I 
was  at  the  trial.  There  is  not  an.v  suffl- 
eient  memorandum  in  writing  of  n  con- 
tract to  satisfy  the  statute  of  frauds.  The 
case  decided  In  the  ho  ise  of  lords,  to 
which  reference  has  been  made  during  the 
argument,  is  clearly  distinguishable. 
That  case  oidy  decideil  that  if  a  ducument, 
which  is  silent  as  to  the  particulars  of  a 
contract,  refers  to  another  document 
which  contains  sucli  |)articulars,  parol 
evidence  is  admissible  for  the  purpose  of 
shewing    what   ilocuiueut    is    referred   to. 


AssMming,  in  this  case,  that  the  two  doc- 
uments were  sufllciently  connected,  still 
there  would  not  be  any  sulllcient  evidence 
of  the  contract.  The  contract  in  quention 
was  to  deliver  some  |)articular  t<'etl.  to 
be  made  in  a  partii-ular  way,  but  these 
letters  dli  not  refer  to  any  particular 
bargain,  nor  In  any  inauoer  discloHC  ItM 
terms. 

The  main  question  which  arose  at  the 
trial  was,  whether  the  ccntract  in  the 
seconil  c(jutit  could  l)e  treateil  ns  one  for 
I  work  and  labor,  or  whether  it  was  a  con- 
j  tract  for  goods  sold  and  delivered.  The 
distinction  betwe<'n  these  two  causett  of 
.  action  is  sometimes  very  line;  but  where 
j  the  contract  is  for  a  chattel  to  be  made 
and  delivered,  it  clearly  Is  a  contract  for 
the  sale  of  goods.  There  are  some  cases 
in  which  the  supply  of  the  materials  is 
aiii'illi»ry  to  the  contract,  as  In  the  case 
of  a  printer  supplying  the  pnper  on  which 
a  book  is  printed.  In  such  a  case  an  ac- 
tion might  perhaps  be  brought  for  work 
and  labor  done  and  materials  provided, 
as  it  could  hardly  be  said  thatthesub- 
jcct-mat  ter  of  the  contract  was  the  sale 
of  a  chattel:  perhaps  It  is  more  in  the 
nature  "f  n  coiitract  merely  to  exercise 
skill  and  labor.  Clay  v.  Ynles-  turned  on 
Its  own  pcruliar  circumstances.  I  enter- 
tain some  doubt  as  to  the  correctness  of 
that  decision;  but  I  certainly  do  not 
ngrw  to  the  proposition  that  the  value 
of  (he  skill  and  labor,  as  compared 
to  that  of  the  material  sup(ilied.  is  a 
criterion  bj-  which  to  ilecide  whether  the 
contract  be  for  work  and  labor,  or  for 
j  the  sale  of  a  chattel.  Here,  however,  the 
subject-matter  of  the  contract  whs  the 
sup])ly  of  goods.  The  case  bears  a  strong 
resemblance  to  that  of  a  tailor  supplying 
a  coat,  tlie  measurement  of  the  mouth 
and  fitting  of  the  teeth  being  analogous 
to  the  measurement  and  fitting  of  the 
garment. 

lULh.J.     1   am  of  the  same  opinion.     I 
think  that  the  decision   in  Clay  v.  Yates' 
is  perfectly  right.     That  was  not  n  case  In 
which    a  i)arty    ordered    a    chattel    of   an- 
other which  was  afterwards    to    lie   made 
land  delivered,  but   a    case    In    which    the 
I  subject-matter    of   the  contract    was   the 
j  exercise  of  skill   anil   labor.     Wherever  a 
[contract   is   entered  into  for  the  manufac- 
ture  of  n   chattel,  there   the  subject-mat- 
ter  of    the   contract    is  the  sale  and  deliv- 
ery of  the  chattel,  and    the   (larty  supply- 
ing it  cannot  r(M.-iiver  for  work  and  labor. 
.■\tkinKon  v.  Bell*  is,  in  my  opinion,  good 
law,  with    the  exception  of  the   dictum  of 
I'.avliy,  .T.,  whlcii    is  reinidiated  by  Mnule, 
.1.,   in    Cirafton    v.    .-Xmiitage.^    where    he 
savs:    "InordiT   to   sustain   n   count   for 
work  and  labor.  It   is   not    necessary  that 
the  work  and  labor  should    be   performed 
upon    materials   that   are  the  property  of 
the  plaintiff."     And   Tlnilnl,   ('.   .)..   In  his 
judgment    in    the    same    case,    page    3tO, 
]  points  out  that  In  the   application   of  the 
'observations   of   Bnyley,   J.,  regard  must 


'  1  H.  &  X.  73. 


'1  IT.  &  X.  7 
'1  II.  &  X.  7: 
'  S  B.  .V:  C.  27 
'  2  C.  B.  X!0. 


510 


LEE  V.  GRIFFIN. 


be  had  to  tlie  particular  facts  of  the  case. 
In  every  other  respuct,  therefore,  the  case 
of  Atkinsou  v.  Bells  is  law.  I  think  that 
these  authorities  are  a  complete  answer 
to  the  point  taken  at  the  trial  ou  behalf 
of  the  plaintiff. 

When,  however,  the  facts  of  this  case 
are  looked  at,  I  cannot  see  how,  wholly 
Irrespective  of  the  question  arising  under 
the  statute  of  frauds,  tliis  action  can  be 
maintained.  The  contract  entered  into 
by  tlie  plaintiff  with  the  deceased  was  to 
supi)ly  two  sets  of  teeth,  which  were  to  be 
made  for  lier  and  fitted  to  her  nioiitli, 
and  then  to  be  paid  for.  Throus'i  no  de- 
fault on  her  part,  she  havins  died,  they 
never  were  fitted;  no  action  can  therefore 
be  brought  by  the  plaintiff. 

BLACKBURN,  J.  On  the  second  point, 
1  am  of  opinion  that  the  letter  is  not  a 
sufficient  memorandum  in  writing  to  take 
the  case  out  of  tlie  statute  of  frauds. 

On  the  t)ther  point,  tlie  ()uestion  is 
whether  the  cc^ntract  was  one  for  the  sale 
of  goods  or  for  work  and  labor.  I  think 
that  in  all  cases,  in  order  to  ascertain 
whether  the  action  ought  to  be  brought 
for  goods  sold  and  delivered,  or  for  work 
and  labor  done  and  materials  provided, 
we  must  look  at  the  i)articular  contract 
entered  into  between  the  [jarties.  If  the 
contract  be  such  that,  when  carried  out, 
it  would  result  in  the  sale  of  a  chattel, 
the  party  cannot  sue  for  work  and  labor; 
l)ut  if  the  result  of  the  contract  is  that 
the  party  has  done  work  and  labor  which 
ends  in  nothing  that  can  become  the  sub- 
ject of  a  sale,  the  party  cannot  sue  for 
goods  sold  and  delivered.  The  case  of  an 
attorney  employed  to  prepare  a  deed  is 


'  8  B.  &  O.  277. 


an  illustration  of  this  latter  proposition. 
It  cannot  be  said  that  the  paper  and  ink 
he  uses  in  th3  preparation  of  the  deed  are 
goods  sold  and  delivered.  The  case  of  a 
printer  printing  a  book  would  most  prob- 
ably fall  within  the  same  category.  In 
Atkinson  v.  BellT  the  contract,  if  carried 
out,  would  have  resulted  in  the  sale  of 
a  chattel.  In  Grafton  v.  Armitage.s  Tin- 
dal,  C.  .!.,  lays  down  this  very  principle. 
He  draws  a  distinction  between  the  cases 
of  Atkinson  v.  Belio  and  that  befoj-e  him. 
The  reason  he  gives  is  that,  in  the  former 
case  "the  substance  of  the  contract  was 
goods  to  be  sold  and  delivered  by  the  one 
party  to  the  other;"  in  the  latter,  "there 
never  was  any  intention  to  make  any 
thing  that  could  properly  become  the  sub- 
ject of  an  action  for  goods  sold  and  deliv- 
ered." I  think  that  distinction  reconciles 
those  two  cases,  and  the  decision  of  Clay 
V.  Yates  10  jg  pot  inconsistent  with  them. 
In  the  present  cas?  the  contract  was  to 
deliver  a  thing  which,  when  completed, 
would  have  resulted  in  the  sale  of  a  chat- 
tel;  in  other  words,  the  substance  of  the 
contract  was  forgoodssold  and  delivered. 
I  do  not  think  that  the  test  to  apply  to 
these  cases  is  whetlier  the  value  of  the 
vfork  exceeds  that  of  the  materials  used 
in  its  execution;  for,  if  a  sculptor  were 
employed  to  execute  a  work  of  art,  great- 
ly as  his  skill  and  labor,  supposing  it  to 
be  of  the  highest  description,  might  exceed 
the  value  of  the  marble  on  which  he 
worked,  the  contract  would,  in  my  opin- 
ion, nevertheless  be  a  contract  for  the  sale 
of  a  chattel.    Rule  absolute. 


'  8  B.  &  C.  277. 
■2  0.  B.  340. 
'  8  B.  &  C.  277. 
">  1  H.  &  N.  73. 


LIXCOLN  c.  GALL.VOHEH. 


513 


LINCOLN  V.  GALLAGHER. 

(8  Atl.  Hep.  8s:{,  79  >Ie.  189.) 

Supreme  Judicial  Court  of  Maine.    Feb.  28, 
1SS7. 

On  exceptions  by  tlefciiflatit  from  su- 
preme judicial  court,  Wusliington  county. 

AHHumpsit  for  ilanuiKC.s  on  a  breacii  of 
eotitract  for  tlie  [lurcliaKe  and  Kale  of  a 
veMHcl.  The  defenKe  was  that  the  vessel 
was  not  dcliveieil  by  plaintiff  within  a 
reasonable  tinie,  and  that  the  defendant 
had  no  opportunity  to  e.xamine  the  vessel 
in  order  to  see  tliat  she  was  in  >;ood  or- 
der, as  stipulated  in  the  contract.  A  ver- 
dict was  rendered  for  the  plaintiff,  and 
the  defendant  alleged  exceptions. 

Thomas  L.  Talhot.  for  plaintiff.  John 
F.  Lynch,  for  defendant. 

PETERS,  C.  J.     It  was  said  in  Howard 
V.   Miner, '.'0   Me.  330,  that,  on   a   contract 
for  the  delivery  of  spec-ific   articles    which  1 
are   ponderous   or  cumbrous,  when    it    is  ' 
not  de.sijinatcd    in  the  contract,  and  there  j 
is   nothing;  in  the  condition    and  situation 
of  the  parties   to   determine    the   i)lace   of  I 
dellverj',  it  is  the  privilese  of   the  creditor] 
(o   name   a    reasonable   and  suitable  one;  i 
Ihat  the  debtor  should    request    the  cred- 
itor to  select  the  jilace;  and, if  the  creditor' 
falls   to   do   so,  the   debtor   may   appoint 
the  place.     In  the  ease  at  bar  a  ves.sei  was 
purchaseil    on    the    eastern    coast    some- 
where, tc)    be    delivered     to   the   buyer   in 
Portland.     Had  the  defendant  provided  a 
suitable    place    at    some    dock    or  wharf 
which  could  have  been  reached    by  the  u.se 
LAW  SALES — 33 


of  reasonable  exertion,  the  delivery  should 
have  been  made  there.  The  purchoser, 
after  notice,  falling  trj  provide  a  place,  we 
think  the  seller  woulil  bejuKtilled  in  ten- 
ilerinK  a  delivery  at  safe  anchoraKe  in  the 
harbor,  lie  should  not  be  reijuired  to  go 
to  special  expenses  to  hitnself  to  obtain  a 
place  at  the  wharf  or  up<in  the  shore.  B.v 
the  hill  of  e.xceptions  examined  with  the 
judite's  charRe  we  fiml  that  a  controversy 
arose  between  the  parties  over  the  require- 
ment of  the  purchaser  that  the  seller 
should  Ko  to  the  e.xiiense  himself  of  plas- 
inK  the  vessel  in  a  dry-dock  in  order  that 
the  seller  could  there  examine  her.  There 
was  some  reason  to  suspect  that  the  ves- 
sel had  been  ashore  on  her  voyage  to 
Portland,  and  tlie  purchaser  desired  an 
lnsi)ection  to  see  whether  she  had  es- 
caped injury  or  not.  'I'hore  can  be  no 
doubt  that.  In  ofterinR  delivery,  the  seller 
was  under  oblijiation  to  afford  an  op- 
I)ortunity  to  the  purchaser  to  make  the 
examination.  Hut  any  expenses  to  he 
incurred  thereby,  beyond  what  would  be 
necessary  in  putting  the  vessel  in  a  proper 
place  for  delivery,  would  fall  upon  the 
buyer  and  not  upon  him.  The  seller  was 
uniler  no  obligation  to  incur  any  unusual 
expense.  He  could  not  be  called  upon  to 
place  the  vessel  in  u  dry-dock.  He  tenders 
the  property  as  sound  accordliic;  to  the 
agreeinent  under  which  he  acted.  The 
buyer  must  accept  or  reject  it  at  his  risk. 
Renj.  Sales,  §  i\'.)b:  Croninger  v.  ("rocker,  fiJ 
N.  Y.  l.-d. 

Exceptions  overruletl. 

WALTON.  D.ANFORTH,  E.MEKY.  FOS- 
TER, and  HASKELL.  .IJ..  concurred. 


LITCHFIELD  v.  HUTCHINSON. 


515 


LITCHFIELD  v.  HUTCHINSON. 

(117  Mass.  195.) 

Supreme  Judicial  Court  of  Massachusetts.     Mid- 
dlesex.    February  1,  1&75. 

Tort  for  deceit  in  the  sale  of  a  hoi'He. 
The  decluralioii  alleged  tliat  the  defeml- 
Miit  Hold  [)luiiitit(  a  linrHe  f'lr  $;{L';J;  that 
defendant  I'alHely  reprewented  that  the 
horse  was  Hound  in  every  way,  to  induce, 
plaintiff  to  huy;  tliat  the  plaintiff,  believ- 
ing that  naid  representation  wbh  true, 
vvaH  thereby  induced  to  buy  the  horse,  but 
the  liorHe  whh  not  wound  in  every  way,  but 
waH  lame  and  foundered,  and  lame  in  the 
fore  le«H  and  KhoulderH,  and  was  unsound 
and  of  little  value,  an  defendant  well  knew. 
.\nHwer  a  general  denial.  The  court  al- 
lowed a  bill  of  exceptions  totheeffect  that 
there  was  evidence  that  the  defendant 
made  the  representations  an  alleged  ;  that 
tliey  were  false,  and  known  by  defendant 
to  be  false;  that  the  plaintiff,  relyiuR 
tliei'con,  wuH  induced  to  purchase  the 
horse  as  allejicd;  and  that  the  lior.se  was 
then  in  fact  lame  and  unsound.  The  evi- 
<lence  was  conflictiuK  on  all  these  points, 
i'laintiff  puid  defendant  l5;J2o  for  the  horse, 
aTid  there  was  evidence  that  he  waH  not 
worth  at  the  time  of  the  sale  over  §100. 
The  defendant  testified  that  he  maiie  no 
representations  whatever,  and  that  Ik^ 
had  worked  the  horse  almost  every  day 
for  three  weeks,  and  did  not  observe  any 
lameness  or  that  he  was  unsound.  Upon 
this  evidence  the  plaintiff  requested  the 
judge  to  charge  that, if  thedefendant  made 
a  representation  of  the  soundness  of  the 
horse  as  of  his  own  knowledge,  ho  might 
have  known  by  reasonable  inquiry  and 
examination  whether  he  was  sound  or 
not,  and  the  horse  was  not  sound,  and  if 
the  plaintiff  relied  on  such  representations, 
and  was  induced  thereby  to  purchase  the 
horse,  and  thereby  sustained  damage,  the 
defendant  was  liable.  If  the  defendant 
represented  that  the  hor.-ie  was  sound, 
wiien  he  was  unsound,  and  the  |>Iaintiff 
was  thereby  indnrod  to  buy  thehorse.and 
was  then^by  injured,  then  the  defendant 
was  liable.  If  the  defendant  knew  the 
horse  was  unsound,  and  did  not  make 
such  fact  known  to  the  plaintiff,  but  al- 
lowed him  to  purchase  the  same  at  a  fair 
market  price  as  a  sound  horse,  then  th? 
defendant  \>as  guilty  of  fraud,  and  was 
liable.  If  the  defendant  had  no  knowledge 
one  way  or  the  other  as  to  the  soundness 
<if  the  horse,  but  represented  to  the  plain- 
tiff that  he  was  sound,  and  he  was  in  fact 
unsound,  it  would  su|i|iort  the  allegation 
that  he  made  to  the  plaintiff'  a  false  alle- 
gation knowingly.  If  the  defendant  made 
the  represen  tat  ions  to  the  plaintiff  wit  ho  lit 
any  knowledge,  information,  or  ground  of 
belief,  and  they  were  in  fact  fnlse.it  would 
not  differ  legally  from  a  representation 
known  by  the  defendant  to  be  false.  The 
judge,  instead,  iiistnictpd  the  jury  that  if 
the  defendant  iiiaile  the  reiiresentatioiiH 
alleged,  as  matter  of  fact  within  his  own 
knowledge,  and  the  representations  in  nn.v 
material  respect  were  not  true,  and  the 
defendant  knew  they  were  false,  or  he  diil 
not   honestly  believe  them  to  be  true,  and 


[the  plaintiff,  relying  upon  them  as  true, 
was  induced  to  purchase  the  horse  and 
pay  therefor,  the  defemlant  was  liable, 
liut  that  the  action  could  n(it  be  main- 
tained by  merely  proving  that  the  ilefend- 
ant  had  reasonable  cause  to  believe  the 
reiiresentatlons  were  untrue;  the  di-clara- 
tlon  alleging  that  they  were  frauilulently 
made,  and  that  the  defc^ndant  knew  them 
to  be  false,  and  that  a  false  representation 
is  knowingly  made  wlicn  a  party,  for  a 
fraudulent  purpose,  states  what  he  does 
not  believe  to  be  true,  even  though  he  may 
have  no  knowledge  on  the  subjeit.  The 
jury  returned  a  verdict  for  the  defendant, 
aud  the  plaintiff  alleged  e.xccptioDH. 

D.  S.  RichardHon,  |(j.  V.  Hichnrdson, 
with  him. J  for  jdaintiff.  W.  8.  Gardner, 
for  defendant. 

MOKTO.X,  J.  This  is  nn  action  of  tort, 
in  which  the  plaintiff  alleges  that  he  was 
induced  to  buy  a  horse  of  the  defendant 
by  reiiresenfations  made  by  liim  lh;it  the 
horse  was  sound,  and  that  the  horse  was, 
in  fjict,  unsound  and  lame,  all  of  which 
the  defendant  well  knew  . 

Tosustain  smh  an  action  It  is  necessnry 
for  the  [ilaintiff  to  prove  that  the  defend- 
ant made  false reprrsentations,  which  were 
material,  with  a  view  to  Iniluee  the  plain- 
tiff to  purchase,  and  that  the  ]iliiiritirr 
was  thereby  induced  lo  purchase,  lint  it 
is  not  always  necessary  to  prove  that  the 
defendant  knew  that  the  facts  stated  by 
him  were  false.  If  he  states,  as  of  his  own 
knowlrdge,  material  facts  snsci-ptible  of 
kiicwledge,  which  are  faNe,  it  is  a  fraud 
wliich  renders  him  liable  to  the  party 
who  relies  and  acts  ujion  the  statement  as 
true,  and  it  is  no  defence  that  he  believed 
the  facts  to  be  true.  The  falsity  and  fraud 
consists  in  representing  that  he  knows  the 
facts  to  be  true,  of  his  own  knowledge, 
when  he  has  not  such  knowledge.  I'age 
V.  lient.  2  .Met.  :i7l.  Stiuie  v.  Dennv,  4  .Met. 
l.'il.  -Milliken  v.  Thorndike.  103  Mass.  ;;si>. 
Fisher  v.  Mellen,  KK!  .Mass.  .■|0:I. 

In  the  case  at  bar  the  plaintiff  asked  the 
court  to  instruct  the  jury  "that  if  thede- 
fendant made  a  representation  of  the 
soundness  of  the  horse,  as  of  his  own 
knowledge,  and  the  jury  aresatistied  that 
he  might  have  known  by  reasonable  in- 
quiry and  examination  whether  he  was 
soiiiid  or  not,  anil  the  horse  was  not  sound 
as  a  matter  of  tact,  and  If  the  plaintiff  re- 
lied on  such  re|>resentation8.  ami  was  in- 
djceil  thPieby  to  purchase  the  horse,  and 
thereby  sustained  damage,  then  the  de- 
fendant is  lialile. "  We  are  of  oiiinlon  that 
this  instruction  should  have  lieen  given  In 
substance.  If  the  defect  In  the  horse  was 
one  wjich  might  have  been  known  t>y  ren- 
sonable  examination.  It  was  a  matter  sus- 
ceptible of  knowledge,  and  a  re|iri>seiita- 
tion  by  the  defendant  made  as  of  his  own 
knowledge  that  such  defect  did  not  exist, 
would,  if  false,  lie  a  fraud  for  which  ho 
would  be  liable  to  the  plaintiff,  if  maile 
with  a  view  to  Iniluce  hini  to  purclin8e, 
and  it  relieil  on  by  hlin. 

A  f.'ilse  representation  of  this  character 
is  sulllcieully  set  forth  In  the  declaration 
to  constitute  a  cause  of  action,  without 
the   further  allegation  that  the  defendant 


51G 


LITCHFIELD  V.  HUTCHINSON. 


well  knew  the  representations  to  be  false. 
It  is  not  necessary  that  all  the  allesatious 
shoiilil  he  proved  if  enoiiffh  are  proved  to 
make  out  a  cause  of  action. 

The  instructions  given  upon  thesuhject 
embraced  in  this  prayer  required  the 
plaintiff  to  prove,  not  <inly  that  the  de- 
fendant made  the  false  representations  al- 


leged, as  of  his  own  knowledge,  but  also, 
that  the  defendant  knew  that  they  were 
false,  or  thiit  he  did  not  honestly  Relieve 
them  to  be  true.  In  this  res|)ect  the  in- 
structions were  erroneous. 
Kxcc|)tions  sustained. 

AMES  &  ENDICOTT,  .IJ.,  absent. 


LOKIi  V.  1'ETEU.S. 


il'J 


LOEB  et  al.  T.  PETERS  et  al. 

(1)3  Ala.  243.) 

Supreme  Court  of  Alabuma.     Deo.  Term,  1879. 

Action  hy  J.  M.  Peters  &  Brnther 
a^xiii'^t  tlx'  South  &  Nortti  Alubuniii  KmiI- 
riiai]  Coiiijiaiiy  for  certain  cliiiltels.  J. 
Ijocb  &  I'rotliiT  iiittTvciiccI  a8  claiiD.-iiitK, 
and  olitai[K'(]  poKKOKJsion  iii  the  k<)o<ih  on 
makiiiK  the  proper  attidavit  and  ;;ivinj; 
bonil.  From  iijuiit;inent  f(jr  plaintiffs  said 
clainiantH  appealed.     Alllrnied. 

Sayre  &  Graves,  for  appellants.  L.  A. 
Shaver,  contra. 

MANNING,  J.— Munter  &  Brother,  be- 
ln>r  largely  in  debt,  and  insolvent,  by  an 
order  re(iuestiny:  ehi!>nient  to  them, 
bought  of  jilaiiitiffs.  J.  M.  Peter.s  &  Broth- 
er, of  Virniiiia,  twenty-live  boxes  of  to- 
bacco; which  they  accordinj-ly  sent  us 
directed,  to  Munter  &  Brotlier,  at  Mont- 
Koniery,  Alabama,  by  railroad,  forward- 
ing to  tiieni  by  mail  a  bill  of  ladins  there- 
for. On  receipt  of  this,  several  days  be- 
fore the  bo.xes  arrived,  .Munter  &  Brother 
indorsed  it,  and  transferred  tlieir  rij^ht  to 
the  Koods  to  J.  Loeb  &  Brother,  who 
nave  them  credit  for  the  same,  on  a  debt 
past  due,  which  .Munter  &  lirother  owed 
them.  There  was  no  other  consideration 
for  this  transfer.  Soon  afterwards,  Pe- 
ters A:  Brother,  being  informed  of  the  in- 
solvency of  Munter  &  Brother,  and  claim- 
inn  the  rifilit  to  stop  the  tobacco  in  tran- 
situ, demanded  it  of  the  carrier,  the  South 
&  .North  Alabama  P.ailroad  Company, 
and  sued  the  same  in  detinue  for  it,  hav- 
ing lirst  offered  to  pay  the  freinlit  money. 
Loeb  &  Brother  intervened  as  claimants, 
and  thereby  obtained  possession  of  the 
noods.  Whereupon,  the  suit  was  prose- 
secute<l  acaiiist  them,  to  a  verdict  and 
judgment  in  favor  of  Peters  &  Brother, 
from  which  Loeb  &  Brother  have  ap- 
pealed to  this  court. 

We  do  not  concur  in  the  opinion  ex- 
pressed in  Kopers  v.  Thomas  t^U  t'onn. 
54),  that  a  vendor  of  poods,  in  transit  to 
an  insolvent  vendee,  can  not  stop  them 
on  tlie  way,  before  delivery,  unless  the  in- 
solvency of  the  vendee  occurred  after  the 
sale  to  him  of  the  kooiIs.  We  think,  with 
thesu[»reme  court  of  Ohio,  tliat  the  ven- 
(k)r  may  stop  theuoods  u|ionu  subsequent 
mscovery  of  insolvency  existinnat  thetime 
of  the  sale,  as  well  as  upon  a  subsequent 
inscdveucy.  If  there  be  a  want  of  ability 
to  pay,  it  can  make  no  difference,  in  jus- 
tice or  Kood  sense,  whether  it  was  pro- 
duced by  causes,  or  shown  by  acts,  at  a 
period  before  or  after  the  sale.— Benedict 
V.  Schaettle,  11.'  Ohio  St.  51."):  Hevnolds  v, 
Boston^  M.R.U.('o.,4:!  N.H..">y.t:  O'Brien 
v.  Norris,  It;  Md.  iL'J;  Blum  v.  .Marks,  L'l 
La.  Ann.  2(>.S.  The  best  delinition  of  the 
rijiht  which  we  have  seen,  is  that  in  Par- 
sons's  Mercantile  Law,  as  lollows:  "A 
seller,  who  has  sent  noods  to  a  buyer  at 
a  distance,  and,  after  sending  tliem,  linds 
that  the  linyer  is  insolvent,  may  stop  the 
Koods  at  any  time  before  they  reacli  the 
buyer.  His  riKht  to  (U)  this  is  called  the 
rinht  of  stoppage  in  transitu."— Chap.  X, 
p.  GO. 


j  If,  before  this  right  lo  exercised,  the 
buyer  sells  the  goods,  anil  indorses  theblll 
of  lading   for  them  to  a  punliaser  in  good 

I  faith,  and    for    value,  the  right  of  tlie  first 

j  vendor   to   retake  them  is  extinguished. — 

jLickbarrow  v.  Mason,  1  ^>mltl^s  lA'aii. 
Cases,  JiSS.  Evidence,  therefore,  that  Loeb 
&  Brother  knew,  when  thev  took  a  tranH- 
fer  of  the   bill    of    lading,  tiiat   Munter    & 

I  Brother  were  innolvent.  was  relevant  anil 
proper  to  show,  in  connection  with  other 
testimony,  that  Loeii  &  Brother  were  not 

j  bona  tide  purchasers.  And  there  was  no 
error   in    permitting  a    witness  to    testify 

I  what  one  of  that  lirm  had  previously 
said,  tending  to  show  such  knowledge, 
w-hen    he   was  giving  evidence  in   another 

[cause.     Statements  and  declarati<ms,  rele- 

i  vant  to  the  matter  in  hand,  which  have 
been    made  by  a  party  to  u  cause,  may  be 

]  proved     against     him,    witlioul    his    ail- 

,  versnry  being  compelled  to  use  such  party 
as  a  witness  in  a  suit  in  which  he  is  Inter- 
ested. 

The  two  judgments  against  Munter  & 
Brother,  in  favor  of  creditors,  confessed 
D.v    the   former    before    the    tobacco    had 

j  reached  its  destination,  and  the  seizure 
upon   execution    the  next  day  of  property 

I  of  Munter  &  lirother,  by  the  sheriff,  tenil- 
ed  to  prove  their  insolvenc.v;  tinil  tlie  evi- 
dence  of   those  facts  was,  therefore,  prop- 

I  erly  admitted. 

The  transfer  of  a  bill  of  lading,  as  a  col- 
lateral to  previous  iddigations,  without 
anything  advanced,  given    up,  or  lost   on 

I  the  part  of  the  transferee,  does  not  consti- 
tute such  an  assignment  as  will  preclude 
the  vendor  from  exercising  the  right  of 
sto[ipage  in  transitu.     Said  Bradley.  Clr- 

jcuit  .lustice.  in    Lesossier   v.   The  .South- 

I  western,  2  Woods,  :!.">:    "Nothing  short  «if 

j  a  bona  lide  sale  of  the  jroods  for  value,  or 
the  possession  of  them  by  the  vendee,  can 
defeat  the  vendor's   right   of  stoppage  in 

i  transitu:  and  hence  it  has  been  held,  that 
an  assignee  iu  trust  for  creditors  of  the 
insolvent  vendee  is  not  a  purchaser  for 
value,  and,  conseoiiently.  takes  subject 
to  the  exercise  of  any  right  of  stoppage 
in  transitu  which  may  exist  airaitist  the 
assignor. — Harris  v.  Pratt,   17    N.  Y.  241)." 

I  Wherefore,  it  was  held   in    the  latter  case. 

|tliatun  attachment  in  the  suit  of  the 
vendee's  creditor,  of  goods  landed  by  the 
carrier  upou  a  wharf  boat  at  the  place 
of  delivery,  did  not  prevent  the  vendor 
from  stopping  them  in  transitu.— See. 
also,  O'Brien  v.  Norris,  Id  .Md.  122;  Nay- 
lor  v.  Dennie.  S  Pick.  l'.»ii;  Nicliolls  v. 
LeFeiivre,  2  Bingh.  (.V.  C.)  S;{.  The  doe- 
trine  is  based  upon  the  plain  reason  of 
justice  and  equity,  enunciated  in  D'.VgulIa 

'  V.  Lambert  (2  Eden's  Ch.  77).  that  "one 
mail's  property  should  not  be  apiilled  to 
tlie  payment  of  another  man's  dclit." 
The  light  itself  is  regarded  as  niiextentlon 

.merely  of  the  lien  for  the  price,  which  the 
seller  "of  goods  has  on  them  while  remain- 
ing in  his  possession;  which  lien  the 
courts  will  nut  permit  to  be  siipersede<l. 
before  the  vendee,  who  has  become  insol- 
vent,   obtains    possession,    unless,    in   the 

'  nieantiiue.  the  goods  have  been  sold  to  a 
person  «  lio,  in  good  faith,  has  paid  value 

.  for   them,  and   so  would  be  a  loser  by  his 

I  purchase,  if  that    were   beld  invalid.     A|>- 


520 


LOEB  V.  PETEKS. 


pelliinlH  bavins  only  crodited  Miinter  & 
Brother  on  a  dobt  previously  due  fi-oni 
tlieni,  witii  the  pru:e  of  the  tobacco,  liHve 
notlilng  iiioie  to  do,  in  order  to  net  even, 
than  to  dehit  llieni  with  the  same  sum, 
for  the  uon-delivery  of  the  Roods  in  con- 
sequence of  tlie  defect  in  Munter  &  Broth- 
er's title. 

The  case  of  Crawford  v.  Kirksey  (55 
Ala.  'JS2),  so  much  relied  on  by  a[ipel- 
lants,  is  wliolly  unlike  tliis.  Tlie  (jnestion 
of  stoppage  in  transitu  was  in  no  Tv:iy 
involved   in    it.      The  controversy    tliere 


was,  whether  a  conveyance  by  a  debtor 
in  a  failins  condition,  of  pro[)erty  which 
was  indisputably  and  entii'ely  liis,  in  pay- 
ment of  a  debt  to  one  of  his  creditors, 
was  not  void  as  to  the  otliers;  and  tliis 
court  decided,  that  the  law  permitted 
such  a  preference,  and  that  t!;e  transac- 
tion was  n(jt  fraudulent  in  fact. 

It  results  from  what  wo  liave  said,  that 
tliere  was  no  error  in  tlie  cliarges  to  the 
jury. 

Let  the  judgment  of  the  circuit  court  be 
affirmed. 


LUPIX  V.  MAUIE. 


r.2.T 


LIJI'IN  ct  al.  V.  MAIUK  ct  al. 

CO  Wend.  77.) 

Court  of  Errors  of  New  York.     Ucccmber,  1S30. 

Appoal  from  clinncory.     On  tlieHltli  Aii- 
fjnHt.  lKL'(i,  Marie  Ixumlit  of  an  UKCit  <if  tin; 
coriiplaiiuuits    in  tliu  i-ity  of   Now  Ytii'U,  IS 
pai-kai;eM  of  kooiI.s,  amounting  tofT.'JiKi.'iM, 
for  which  lie  agreed  to  nivf  IiIm  own  not(-H, 
pa.valiliMM   ."iciina!    [iroportionH,  at  0,  7,  S, 
;>  anil  10  niontliH  ;   the  Roods  were   Hold    at 
14  cciitH  per  franc,  short  price,  when  KoodH 
of   the   Hanic   (luallly  were  publicly  Helling 
at   from    I'O  to  L'2  cents  per  franc,  and    not 
at   a    lurner  credit   than  hI.x  tnontliH.     On 
the  L'.')tli  AiiKU.Ht  the  Koods  were  delis'ered 
to  Marie,  who  represented  to  the  anent  of 
the  coinplainantH  tli..t  he  intended  to  Bhip 
them  to  Havana  forHalcHand  returns  ;  and 
on  the  next  day  did  ship  them  on  hoard  a 
vesHcl,  which   shortly    thevafter  set    sail 
from    New  York,  hound   to  Havana.     'l"he 
notes  which    Marie  was   to   fj;ive  were  not  [ 
made  or  delivered  to  the  atjent  of  theconi- 
plainants  at  the  time  of  thedeliver.v  of  the 
•rcMids.      On   the   fonrth    Septemher,    IM'd,  ' 
Marie,  by  an  aceiimnlation    of  disastrons  i 
circnnistances,  and    in   conse.inenre  of  ad- 
vices  received  by  him  from  Vera  Cruz  and 
from    Knrope.  was  compelled    to   suspend 
payment,  and   suffer   his  bunds  and  notes  ' 
to  be  dishonored.     At  the  time  of  the  pui-- 
cliase  of  the  jioods,  Marie  enjoyed  a    liij;li 
(•(Miimercial  credit  and  stnndinii  iu  the  city  : 
of  .New  York,  was  reputed  and  considered 
himself   perfectly  solvent   and    amply  jililo  ; 
to   pay  all  his  del)ts   and    responsibilities, 
and  not  until  one  o'clock  in  the  afternoon  I 
of  t  he  fourth    of  September  did  he  perceive  ' 
that    he    would    be   comiielled  to   suspend  i 
payments;  anil    so  unconsciou»  was  he  of 
Ills  situation,  that   after   the   purchase  of. 
the  Roods  from  the  complainants,  and  i)ro- 1 
vious  to  his   failure,  he  niade  [lavments  to 
the  amount  of  about  .fls.doil.     On  the  fifth  , 
of  September,  the  insolvency  of  .Marie  ha  v-  ] 
iiiK  liecome   notorious,    the   asjent   of  the 
complainants  requested  him    to   re-deliver 
the  Roods  by  RivinR  an  orrler  for  the  same 
upon  the  captain    of  the   vessel   in    wliich 
they  were  shipped.     Marie   refused  to  dive 
such  order,  and  on  the  ninth  of  Se|)tember 
executed  an  asslRnment  tc»  Varet.  the  oth- 
er <lefendant,  of   four  several  shipments  of 
Roods,    incluilinR     the    merchandise    pur- 
chased of  the  complainants,  to  secure  him 
nearly  :tf7(),(IOI),  for  which    lie  was  responsi- 
ble  as   the  endorser   of   Marie,  and  as  liis 
Huret.v  on  custom-house  lionds.     'I'he   ves- 
sel in  which  the  Roods  were  embarked  met 
with  a   disaster   at  sea,  and   was   cdiliReil 
to  put  into  Norfolk, in  VirRinia.foi' repairs. 
Whilst  she  was  there,  and  about  the  thii'- 
tielh  day  of   September,  the   aRent   of  the 
coiiiplainaiits  applied  to  Varet  for  permis- 
sion   that    the  Roods  be  delivered  to  him  ; 
Veret    refused    to   Rive   such  consent,  and 
instructed  his  aRf  nts  at  Norfidk  to  rc-ship  i 
the  Roods  to  him  at  New  York,  where  they  | 
accordiHRly  arrived,  and  were  disposed  of 
by  him,  some  bel:iR  sold  at  Now  York,  and 
the   residue    beiuR    shipped    to    Havana. 
The  net  proceeds  of  the  goods   amounted 
to  .?(i,(i<,ll. :,".).    After  the  return  of  the  Roods 
to  New  York,  the  complainants demaiuled 


them  of  Varet,  which  demaiid  was  not 
complied  with. 

The  complainants  filed  their  bill,  rclvluR 
upon  the  non-ileliveiy  of  the  noteH,"on(l 
the  non-payment  of  the  consideration 
money  us  entltliiiR  them  to  a  decree  In 
their  favor  for  the  value  of  the  Roods,  and 
also  charRiriR  the  defendants  with  fraud. 
In  their  answers  the  defendantM  insisted 
that  the  Roods  had  become  absolutely  the 
Iiroperty  of  Marie;  that  ho  had  not  been 
reciuested  to  Rive  the  notes,  and  that  In 
conse(|uence  of  his  failure.  It  was  believed 
that  the  complainaiiiH  were  unwillinR  fo 
receive  them;  that  since  the  failure  of 
.Marie,  the  other  defendant,  \'aret,  hail  paid 
aii<l  satisfied  all  the  cuslomhouse  bonds 
and  notes  for  which  he  was  responsible. 
Var«-t  denied  all  knowleilRe  on  his  part  of 
the  terms  of  the  sale  tci  .Marie,  that  such 
terms  were  not  complied  with, or  that  the 
Roods  were  not  paid  for;  and  botlidefend- 
aiits  denieil  all  fraud,  &c. 

The  cause  was  heard  on  bill  and  answer, 
and  the  chancellor  decreed  that  the  bill  lie 
dismissed.  For  the  reasons  of  his  deci- 
sion, see  2  PaiRe.  IGl).  The  complainunts 
apiiealed. 

<".  (Jraham  and  .1.  TnllnindRe.  for  nppel- 
lanls.     (.".  Baldwin,  for  respondents. 

Mr.  .Justice  MAItCY.  The  <iuestlonB 
presented  by  this  case  for  our  determlnn- 
tion,  are:  1.  Wa.s  there  a  sale  of  the  IS 
packaRcs  of  merchandise  by  the  appellants 
to  Marie?  'J.  Had  the  appellantsa  lien  on 
the  property  when  they  demanded  it  at 
Norfolk  or  New  Y'ork? 

The  validity  of  the  sale  is  iiuestioned  up- 
on twoRrounds:  1.  The  contract  of  sale 
was  never  complete,  it  is  sai<l,  Ik  cause  t!ie 
purchaser  Marie  did  not  comply  with  the 
condition  upon  which  its  valiility  depend- 
ed. The  position  that  where  any  thing 
remains  to  be  done  to  eoniplele  a  con- 
tract of  sale,  the  title  of  the  iiroperty  does 
not  pass  to  the  purchaser,  has  had  the 
sanction  of  too  many  decisions, and  is  too 
Renerally  aciiniesceii  in,  to  reijuire theclta- 
tion  »)f  authorities  to  sustain  it.  Indeed 
it  was  not  (|ueslioned  on  the  argiiinent. 
l!y  the  terms  of  the  sale,  promissory  notes 
were  to  be  Riven  liy  Marie  for  the  Roods, 
payable  at  six,  seven,  elRht,  nine  and  ton 
months.  These  notes  have  never  been 
Riven,  and  if  the  RiviuR  of  them  has  not 
been  waived  by  the  appellants  or  their 
aRcnt,  the  title  "to  the  Roods  has  not  vest- 
eil  in  the  piiiehaser.  The  Roods  were  de- 
livered without  re(|iiirinR  the  notes.  .Marie 
says  the  notes  have  nevi'r  been  demanded, 
and  he  has  been  williiiR  at  all  times  to 
Rive  them,  but  believes  the  appellantsslnce 
his  failure  are  nnwilliuR  to  receive  them. 
It  is  contended  that  there  has  been  n 
waiver  of  this  eoiidilion  of  the  contract. 
When-  the  ileliver.v  is  aosolule  it  is  a  waiv- 
er of  the  condition  of  payment  or  civinR 
security;  ami  we  search  this  case  In  vain 
for  anv  facts  that  can  warrant  an  infer- 
ence tfiat  the  delivi'ry  of  the  Roods  wils 
not  fair  and  unconditional.  If  the  appel- 
lants dill  not  intend  that  Marie  slinuld  he- 
come  vested  with  the  absolute  property 
in  the  Roods.  "  they  were  liounil."as  Ch.  J. 
Parsons  said  In   the  case  of    Hussey   v. 


524 


LUPIN  V.  MARIE. 


Tliorntiin,  4  Mass.  K.  ■10.").  "to  recollect  tlie 
conililioiis  they  had  tlieiusclve.s  made,  and 
not  to  deliver  the  pacUasies  till  the  condi- 
tioiiH  wore  comiilled  with."  It  has  been 
held,  where  goods  weresold  to  be  paid  for 
in  ea.sli  down,  that  the  delivery,  without 
domandinff  the  money,  vested  the  title  of 
them  in  t!ie  purchaser.  Haswell  v.  Hunt, 
assiKuoe,  &c.,  cited  in  5  T.  U.  2:i\.  The  de- 
livery of  the  tliinssold,  made  uncondition- 
ally, and  not  procured  by  fraud,  vesta  the 
absolute  propert^MU  tbepurcha.ser.  Chap- 
man v.  Lathrop,  6  Cowen,  llo,  and  cases 
cited,  and  note. 

The  second  ground  of  objection  to  the 
validity  of  the  sale  is  mistake  or  error. 
The  alleged  mistake  was  not  in  the  article 
sold,  or  in  the  identity  of  the  person  pur- 
chasing, but  in  the  ability  of  the  purchaser 
to  pa.v.  The  appellants  sold  toone  whom 
they  l.elicved  to  l>e  solvent,  but  who  was 
not  so  in  fact.  The  case  sliows  that  there 
was  in  this  respect  a  mutual  misapprehen- 
sion. No  objection  can  tlierefore  be  raised 
to  the  contract  on  the  ground  of  fraud. 
Marie  did  believe  and  had  good  reason  to 
believe,  that  he  was  solvent  when  he  en- 
tered into  the  contract.  To  invalidate 
contracts  upon  the  ground  that  one  of 
the  parties  was  mistaken  in  tlie  ability  of 
the  other  to  execute,  would  bj  establish- 
ing a  doctrine  unknown,]  think,  to  any 
code,  and  of  the  most  dangerous  conse- 
quences. If  the  circumstances  of  the  pur- 
chaser may  be  inquired  into  %vhenever  the 
seller  wisiies  to  disaffirm  a  contract,  the 
commercial  world,  by  the  e.vercise  of  this 
right  of  inquiry,  would  Ije  thrown  into 
the  greatest  confusion.  I  presume  that 
the  appellants  do  not  contend  for  an  ap- 
plication of  this  doctrine  lieyond  a  case 
like  their  own — a  case  where  the  insolven- 
cy of  the  purchaser  is  notorious  and  ac- 
knowledged: but  if  theprincii)leof  thedoc- 
trine  is  that  the  seller  can  disaffirm  the 
sale  because  the  purchaser  has  Ijeen  dealt 
witl)  as  a  solvent  person,  when  he  was  in 
fact  insolvent,  the  mistake,  whenever  it 
existed,  would  authorize  theoriginalown- 
er  to  reclaim  tlie  property  the  moment  of 
a  default  in  the  payment  and  perhaps  an- 
ticipation of  it ;  and  he  might  allege  tliis 
insolvency  and  default  to  exist  in  any 
case,  and  seek  to  enter  upon  an  inquiry  in- 
to thecircurastaiicesof  tliepurchaser  while 
he  was  in  active  business  and  his  credit 
unimpaired.  I  cannot  consent  to  yield  the 
least  countenance  to  such  a  doctrine. 

The  remaining  question  to  be  settled  re- 
lates to  the  lien  which  the  appellants 
claim  to  have  had  on  the  property.  The 
assignment  of  it  to  Varet  was  not  in  the 
usual  course  of  trade;  it  was  voluntary 
on  the  (lart  of  .Marie  and  for  the  purjiose 
of  indemnifying  Varet  against  antecedent 
resi)onsibilities.  If  there  would  have  Iteen 
a  lien  without  tlie  assignment,  the  assign- 
ment did  not  operate  to  discharge  it.  The 
rule  of  law  in  relation  to  real  estate  is, 
that  the  vendor  has  without  any  express 
agreement  for  that  purpose,  a  lien  on  the 
premises  conveyed,  even  after  j)ossession 
thereof  is  delivered  to  the  purchaser,  for 
the  purchase  money,  provided  lie  has  not 
taken  a  distinct  and  independent  security 
therefor,  and  the  land  has  not  passed  by 
a    bona    fide  sale   to  a  third  person.     The 


chancellorheld  in  this  case  that  such  a  rule 
does  not  exist  in  relation  to  personal  prop- 
erty.    Whetiier  it  does  oi   not  we  arc  no  .\ 
to   determine.       By    the   Roman   law    the 
vendor  could  in  such  a  case  as  this  resort 
to  the   property;  and   so,  I  think,  he  may 
liy  the  civil  code  of  France,  notwithstand- 
ing  article  15!S3,    which   changes   the  civil 
law  and  conforms  to  the  common  law,  so 
ifar   as    to   vest   the  title  in  the   purchaser 
j  without  delivery  or   payment  of  the  jirice. 
j  Code   Napoleon,   art.    16.j4,    11*<.3,    4.     Dig. 
Lib.  LS,  tit.  1,  /.  ID.     All   contracts  of  sale, 
although  positive   in    their  terms,  accord- 
ing to  these  laws,  have,  it  is  said,  this  im- 
plied   condition;    "provided    the    price  is 
paid."    7  Coursde  Code  Civil,  1.52,  par  Del- 
vincourt.     It  was   admitted   on  the  argu- 
ment   by  the  counsel   for   the   appellants, 
that   the   decisions   of  the  English   courts 
[fui'nished  but  little  or  no   countenance  to 
[the  doctrine  they  advanced;  lint  this  was 
i  asci'ibed    to   a  provision   in  the   bankrupt 
jlaw  of  that   country,  which  declares  that 
I  the  goods  found    in  the  possession  of  the 
j  tiankrupt  subject  to  his  order   or   disposi- 
I  tion    as  owner,  shall  p.-iss  to  his   assignee, 
I  though    they  be  in   fact   the   property   of 
i  others.     This  statute   would   cut   off  this 
i  lien  incases  of  bankruptcy  where  it  would 
j  most   frequently  arise;  but  it  would  often 
1  arise  where  there  was  no  bankruptcy.     If 
iit   is    a    rule   of   the  common  law,  it  must 
I  be  shown  to  have  existed  at  some  period. 
j  This  is  not  a  matter  confined   exclusively 
I  to  commercial  dealings  and  to   l)e  settled 
I  by  commercial  usage.     In  France  it  is  not 
j  a  provision  of  the  commercial  code  alone; 
jit  is   founded  in  the  Civil  Code,  and  has  a 
;  general  application    to   all   sales.     Are  we 
i  then  to  recognine  the  rule  as  a  part  of  the 
|commonlaw?     This,  I   think,    we  cannot 
]  do  unless  we  have  some  proof  that  it  isso. 
I  We  are  asked  to  infer  its  existence   in  rela- 
tion   to   personal  property,  because  it  ex- 
j  ists  in  the  case  of  real  property  ;  but  even 
in  relation  to  real  pro|)erty  it  does  not  ex- 
[  ist   as   a  rule  of  the  ancient  common  law  ; 
I  it  is  a  doctrine  of  equity,  and    not  of  law. 
iand    was   transplanted    into   equity  from 
'the  civil  law.     Hut   it  may  be  said  that  if 
]  ecjuity   can  adopt  the   rule  of  the  civil  law 
1  as  applicable   to  real  estate,  it  may  adopt 
j  it  in  extensn.     If  we  tind  it  as  it  is  claimed 
:  in  this  case  in  our  system  of  eciuity,  with- 
i  out  inquiring  liow  or  when    it  came  there, 
'  whether   by  a  bold    act  of  adoption  or  by 
insinuation,  whether  it  is  to  be  reverenced 
for   its   age   or   admired   as  a  modern  im- 
provement, we   ought   to   give  the  benefit 
of  it   to  the   api)ellanfs.     We   are   referred 
to  no  case  on  the   argument,  and    I    think 
the  search    would    be  in  vain  to  find   one, 
wherein   it   has   been  decided  in  a  court  of 
law    or  equity  in    this  country  or  in  Eng- 
land, that  after  a  sale  of  personal  jiroper- 
ty  and  a  fair  and  alisolnte  delivery  to  the 
purchaser   personally,  the  vendor  can   re- 
claim the  property  because  the  considera- 
tion has  not  l)een  paid. 

There  is  an  intimation  of  Lord  Hard- 
wicke,in  Snee  v.  Prescot,!  Atk.  1'4.'),  which 
conveys  his  opinion  of  the  reasonableness 
of  the  doctrine,  that  the  seller  of  goods 
should  have  a  right,  in  cases  of  insolvency, 
to  resort  to  the  goods  sold,  even  after 
delivery,   to  secure  himself  for    the    pur- 


LUPIX  V.  MAIHE. 


525 


fliiiso  motio.v;  but  tlio  caHedid  not  prt-Hcnl 
n  Htato  of  fnctH  on  which  Hiich  a  (|i)(.'Mtioii 
could  arise  (or  lii.s  deU-i-rnina tioii ;  it  wan 
a  (di'ar  case  of  HtoiipaKi'in  transitu.  .Soniii 
expressions  of  Lord  Loudllljoronuli,  in  the 
ease  of  Mason  v.  Liclvl)arro\v,  1  II.  I!lacl<. 
:!(llp,  wonid  seem  to  place  the  rijilit  of  stop- 
page in  transitu  n]ion  the  Rronnd  that  the 
Kale  is  HO  far  incomplete,  until  theiMirch.ise 
money  Is  paid,  as  to  prevent  the  titlelrom 
vesting  absolutely  in  the  purchaser.  "The 
admitted  right  of  the  conHij;iior,  he  says, 
to  stop  the  goods  in  transitu  as  against 
the  consignee,  can  only  rest  upon  his  orig- 
inal title  as  owner  not  divested,  or  upon 
a  legal  title  to  hold  the  possession  of  the 
goods  till  the  price  is  paid  as  a  pleilge  for 
the  price."  I'utting  the  right  upon  the 
latter  nlternativ<',  no  inference  can  be 
drawn  from  it  to  countenance  the  doc- 
trine contended  for  in  thiscnse.  .Mtliongii 
the  cases  in  relation  to  the  stoppage  of 
property  in  transitu  were  referred  to  on 
the  argument,  and  the  d<JClrine  discussed 
somewhat  at  large,  an  examination  of 
these  cases,  or  a  particular  consideration 
of  that  doctrine,  does  not  seem  to  me  to 
be  called  for  to  enalde  ii«  to  come  to  a 
right  conclusion   in   this  case.     If  there  is 


any  r'rinci(de  established  In  law,  it  Is  that 
the  right  to  sto|)  in  trannitu  exists  only 
during  the  transit  of  the  property;  when 
that  is  coiiiplele.  and  the  property  has 
come  fairly  ami  fully  to  the  possi-Kslon  of 
the  purchaser,  the  right  is  at  an  enil. 

It  was  urged  on  the  argument,  tliat  Uio 
doctrine  lontended  for  on  ti.e  part  of  the 
a[)pellants  is  so  salutary,  if  wedid  not  find 
it  sanctioned  by  any  other  court,  wo 
ought  to  take  this  occasion  to  legitimatize 
It.  In  reply  to  this  suggestion,  1  will  bor- 
row the  language  of  .Mr.  .Inslice  .Story,  in 
the  casi!  of  Conyers  v.  Knnis,  '2  .Mnson,  'SK, 
in  wliich  <iueslionH,  in  all  respects  similar 
in  principle  to  those  now  under  consider- 
ation, were  decided  ns  I  propose  to  decide 
these:  "I  clo  not  sit  here  to  revise  tlie 
general  judgment  of  the  common  law,  ur 
to  establish  new  doctrines,  merely  l)PcaUBO 
they  seem  to  be  more  con venlent  ore^iui- 
table.  My  duty  is  to  administer  tlie  law 
as  I  lind  it,  and  I  have  not  the  rashness 
to  attempt  more  than  this  humlde  duty." 
I  am  ofoplinon  that  the  decreeof  thcchan- 
cellor  ought  to  be  nnirmed. 

Tills  being  the  unnnimouaopinlon  of  the 
court,  the  decree  of  the  chancellor  was 
thereupon  ntUrmed,  with  costs. 


MACOMBER  v.  PARKER. 


527 


MACOMBER  et  aL  v.  PARKER. 

(13  Pick.  175.) 

Supreme  Judicial  Court  of  Massachusetts.     Mid- 
dlesex.   Oct.  20,  ls:i2. 

Replevin  for  three  kilns  of  bricks  at- 
tached \>y  the  defendant  on  several  writs 
aprainst  Joseph  Evans.  Flea,  property  lu 
Kvaiis.  Hepiiention,  property  in  theplain- 
tiffs.     Trial  before  Shaw,  C.  J. 

It  was  proved  that  Hunting   and    I.,nw- 
renre   had   a   certain    brickyard    in   Cam-' 
bridge.  orlu;iiinlly  leased  by  A.  liianey  to  .J.  | 
Wilson,  who  assigned    the   lease  to  Hunt- 1 
inc  &  Lawrence.  | 

On  the  Ist  of  March  1S20,  the  followins  ; 
a};''cenient  was  made  betwfcii  Uuntin;;! 
&  Lawrence  on  one  part  and  Kvnnson  the  ; 
other: — "Memorandum  of  an  agreement  i 
&c.  shovveth,  that  said  Evans  has  aftreod  1 
to  make  or  cause  to  be  made  from  ei^rht  ; 
to  ten  hundred  tliousaiid  good  niercliaut- ( 
able  brick  in  the  brick-yard  at  CambridKo  : 
&c.;  said  Evans  agrees  to  hire  the  men 
and  board  to  the  best  advantage,  to  per- 1 
form  the  manufacturing  of  said  brick,  an<l  i 
said  Evans  agrees  to  give  in  his  time  and  | 
services  in  making  said  brick;  and  said  i 
Hunting  &  Lawrence  agree  to  attend  to 
selling  of  brick,  purchasing  of  wood  and 
all  necessary  materials  for  the  raanufac- 
Inring,  collecting  the  bills  &c.  to  the  liestj 
advantage,  and  after  the  l)rick  are  made,  | 
and  the  labor  and  board  of  the  men  are 
paid,  and  all  materials  and  tools  of  ever.v  [ 
kind  are  paid  for,  and  the  said  Evans' 
paying  to  said  Hunting  &  Lawrence  sixty  | 
cents  per  thousand  for  each  and  every 
tlionsand  brick  made  or  claj-  sold,  as  rent 
therefor,  then  the  parties  agree  to  share 
the  profits  or  loss,  as  the  ease  may  be, one 
half  each;  said  Evans  agiees  to  pay  every 
attention  to  have  the  brick  made  in  the 
best  manner  and  in  good  season  for  mak- 
ing brick  ;  said  Hunting  &  Lawrence  shall 
have  full  power  to  retain  said  Evans's 
part  of  the  brick  or  money  collected  or 
delits  due  for  brick  &c.,in  their  possession, 
to  the  amount  of  all  sums  of  money  now 
due  from  said  Evans  and  such  other  sums  , 
of  money,  goods  &C.,  as  they  may  from  ' 
time  to  time  advance  him  ;  all  of  which  the 
parti'^s  agree  to  perform  acconliiig  to  the  , 
true  Intent  and  meaning."  i 

.\o  lease  of  the  yard  was  given  to  Evans,  i 
and  Hunting  testified  that  Hunting  & 
Lawrence  expected  to  secure  to  them- 
selves, by  the  foregoing  contract,  a  ll"n  on  , 
the  bricks  to  be  manufactnrCil  in  purwu- ; 
ance  tliereof,  for  the  payment  of  any  bal- 
ance that  might  be  due  them. 

The  plaintiffs  offered  to  prove,  that  un- ! 
der  such  contracts  for  the  manufacture 
of  Inicks,  it  is  customar.v  for  the  owners 
of  .yards  to  retain  all  in  their  liands  and 
account  with  the  makers  of  bricks  for  their 
share  of  the  profits,  after  the  sales  are  ' 
rcnde  and  the  proceeds  collected.  ThisI 
evidi'ncp  was  rejected  bv  the  Court.  1 

On  the  3d  of  Julv  IM".).  Hunting  &  Law- 
rence stopped  payment  and  assigned  nil 
their  property,  including  the  brick  yard 
and  all  their  interest  therein  and  proper- 
ty thereon,  to  the  plaintiffs,  for  the  benelit 
of  the  creditors  ol  the  assignors,  and  on 


the  same  day  delivered  poRHexRlon  of  the 
yard  and  all  the  i)ro|.erty  thereon  to  the 
plaintiffs,  in  presence  of  Evans;  and  the 
plaintiifs  then  and  there  a|)puinted  Evaua 
their  agent,  by  a  writing  ns  folhjws:— 
"You  will  please  take  the  charge  anil  care 
of  all  the  property  and  effcct.s  in  and  about 
the  l)rick-yard  &c.,  the  said  property  hav- 
iiig  been  this  day  asslgtied  to  us  &c.,  you 
will  proceed  to  sell  the  same  at  retail  until 
further  orders  from  us,  for  cash  only,  and 
whenever  :|f  100  is  received,  you  will  depos- 
it the  satne  in  the  lirancli  liank  tr>  our 
credit.  Please  keep  and  render  uh  uu  exact 
account  of  your  doings  herein." 

Hunting  &  Lawrence  made  larga  ad- 
vances for  the  yard  in  1"<J'J.  Evans  as 
agent  of  the  |)laiatirfs,  thus  appointed, 
sold  bricks  to  (livers  persons. 

On  Friday,  February  2<J.  ls:!0.  the  plain- 
tiffs |iut  a  stop  to  sales  l)y  Evans,  and  di- 
rected Hunting,  who  had  been  their  agent 
in  the  liuslners  of  the  yard,  to  makea  final 
settlement  with  Evans;  and  Hunting  and 
Evans  thereupon  looked  over  the  state- 
ments and  accounts  aud  cast  them  up  (or- 
that  purpose. 

Hunting  testified  that  at  this  settle- 
ment Evans  agreed  to  cart  all  the  bricks; 
the  common  bricks,  at  live  shillings  per 
thousand.  No  price  was  lixed  forthe  faced 
bricks.  I'poii  the  settlement,  the  witness, 
in  liehalf  of  the  assignees,  agreeil  to  take 
all  the  bricks  at  certain  estimated  prices. 
The  assignees  meant  to  take  all  the  prop- 
erty and  allow  Evans  his  half  in  account. 
The  bricks  were  estimated  at  .'ITD  thou- 
sand, and  at  the  cslimateil  priiesaniount- 
ed  to  SPISUO;  the  lioiird  &c.  at  $'^W:  mak- 
ing yi;(i:50.  Taking  the  wliole  to  the  ac- 
count of  the  assignees  and  creiliting  Evans 
his  part,  there  wiiuld  still  lie  a  balance 
due  to  the  assignees,  which  was  to  be 
I)aid  in  carting.  It  was  agreed,  that  if 
the  bricks  overran  the  estimatol  nuinber, 
the  assiirnces  should  account  to  Evans, 
and  if  they  fell  short,  he  should  account  to 
them,  for  the  difference.  They  were  to  be 
counted  in  the  ctinise  of  the  ensuing  week. 
It  was  agreed  that  this  should  be  a  ilelin- 
itivesettlement,  as  Evans  was  not  to  take 
tlieyard  again.  .Nothing  remalueil  but  to 
count  the  bricks,  and  make  the  allowance 
on  the  one  i-ide  or  the  other,  if  the  number 
vnrieil  from  tlie  estimate.  Oncrossexam- 
ination  the  witness  testilled,  that  at  this 
settlement  there  was  an  express  unil'.T- 
standing  with  Evans,  that  the  assignees 
were  to  take  the  bricks  to  their  own  ac- 
count; it  was  a  sale  of  his  half.  Evans 
stated  expressly  that  the  workmen  had 
all  been  iiaid.  and  that  he  had  paid  all 
charges.  Evans  after  this  sctllemi-nt  car- 
ried one  load  of  bricks  to  O.  \V.  lilake. 
The  assignees  were  to  take  Evans's  half, 
as  they  owned  one  half  l)efore.  The  wit- 
ness considered  the  bargain  and  sale  com- 
plete, except  tliat  the  bricks  were  to  be 
counted.  1  hat  was  to  be  done  the  fort>- 
part  of  the  ensuing  week.  When  the  wit- 
ness went  over  to  take  the  count,  he  toiiml 
the  l)ricks  had  been  attachcil  as  the  prop- 
erty of  Evans.  Had  it  not  beenfor  theiit- 
tachmeut.  a  reguliir  account  current 
would  have  been  settled.  The  witness  un- 
derstood that  ICvans  was  to  proce»'d  Im- 
mediately   to  cart  the  bricks   to    Uoston, 


528 


MACOMBER  v.  PARKER. 


which  he  sulicilt-d,  but  the  finalsettlenipnt 
was  not  to  wuit  till  the  bricl<H  were  cart- 
ed, hut  was  to  be  tinished  as  soon  as  they 
were  counted. 

Tlie  defendant  was  proceeding  in  his  de- 
fence,when  a  question  arose,  whetlier  the 
plaintiffs  liad  made  out  a  prima  faciecase. 
It  being  necessary  that  they  should  show 
that  they  were  the  sole  owners  of  the 
property  in  these  bricks,  two  preliminary 
questions  arose,  viz: — 

1.  Whetlier  by  the  terms  of  the  contract 
Evans  was  interested  in  the  bricks,  as 
joint  tenant  or  tenant  in  common,  when 
they  were  made  in  pursuance  of  the  con- 
tra(  t  and  were  fit  for  market; — 

2.  If  that  were  so,  then  whether  upon 
the  facts  stated,  such  a  sale  and  delivery 
had  been  niade  by  Evans  before  theattach- 
ment,  as  to  divest  his  interest. 

A  nonsuit  was  ordered,  subject  to  the 
opinion  of  the  whole  court. 

D.  A.  Simmons  and  Gay,  for  plaintiffs. 
Buttrick  and  Ashmun,  for  defendant. 

WILDE  .r.  delivered  the  opinion  of  the 
court.  It  was  objected  at  the  trial,  that 
the  plaintiffs  had  not  made  out  a  prima 
facie  case,  and  two  questions  were  there- 
upon reserved  for  the  consideration  of  the 
whole  court. 

1.  Whether  by  the  terms  of  the  contract 
between  Hunting  &  Lawrence  and  Evans, 
the  latter,  under  whom  the  defendant 
claims,  was  interested  in  the  bricks  in 
question  as  joint  tenant  or  tenant  in  com- 
mon, when  they  were  made  in  pursuance 
of  that  contract  and  were  fit   for   market. 

2.  If  that  were  so,  then  whether,  upon 
the  facts  proved,  such  a  sale  and  delivery 
had  been  made  by  Evans  at  the  time  of 
the  defendant's  attachment,  as  to  divest 
his  interest. 

As  to  the  first  question,  we  are  of  opin- 
ion, that  by  the  terms  of  the  contract,  the 
bricks  when  made  were  the  joint  property 
of  the  contracting  parties.  By  this  con- 
tract Hunting  &Lawrence  %vere  to  furnish 
the  materinls  for  raanuiacturing  the 
bricks,  and  to  attend  to  tlie  sale  of  them  ; 
Evans  on  his  part  undertook  to  manufac- 
ture the  bricks,  to  hire  and  board  the  la- 
borers employed  for  that  purpose,  and  to 
allow  Hunting  &  Lawrence  sixty  cents 
per  thousand  for  every  thousand  of  bricks 
nia<le  or  clay  sold,  as  rent  thereof;  and 
after  all  expenses  should  be  paid,  then  the 
parties  agreed  to  share  the  profit  and 
loss,  as  the  case  might  be.  one  half  each. 
That  this  amounts  to  a  complete  con- 
tract of  partnership,  cannot,  we  think, 
admit  of  a  doubt.  Partnership  is  defined 
to  be  a  voluntary  contract  between  tw(. 
or  more  persons,  for  joining  together  the'r 
money, goods, labor.and  skill. or  either  or 
all  of  tlieni,  upon  an  agreement,  that 'he 
gain  or  loss  shall  be  divided  proportiona- 
bly  between  them.  Gow,  2.  With  this 
definition  the  contract  in  question  fully 
agrees.  It  contains  every  essential  requi- 
site in  a  contract  of  partnership,  'i  he 
parties  agreed  to  join  together  their  prop- 
erty, skill  and  labor, for  the  purpose  of  ac- 
complishing an  enterprise,  in  wliich  they 
were  to  have  a  comm  union  of  interest  and 
a   communion   of  profit    and   loss.      The 


brifks,  therefore,  when  made  were  their 
joint  property,  and  when  the  partnership 
was  dissolved,  and  Hunting  «fe  Lawrence 
assigned  their  share  to  the  plaintiffs,  the 
latter  became  tenants  in  common  with 
Evans. 

The  plaintiffs  offered  to  prove,  for  the 
purpose  of  showing  that  Evans  had  no 
property  in  the  bricks,  and  was  only  enti- 
tled to  a  share  of  the  jiroceeds  of  sale  of 
them  when  disposed  of,  that  it  was  usual 
and  customary  for  the  owners  of  yards,  un- 
der similar  contracts,  to  retain  all  in  their 
hands,  and  account  with  the  makers  of  the 
bricksfor  theirshareof  the  profits  after  the 
sales  were  made  and  proceeds  collected. 
This  evidence  was  rejected  by  the  judge 
who  presided  at  the  trial,  and  we  think 
very  properly.  The  usages  of  trade  may  be 
admitted  to  aid  in  tlie  construction  of 
doubtful  contracts;  but  the  terms  of  the 
present  contract  are  by  no  meana  doubtful. 
So  far  as  the  question  of  partnership  or  of 
the  light  of  property  is  concerned,  the  con- 
tract is  clearly  and  explicitly  expressed, 
and  the  supposed  usage, if  admitted, could 
not  affect  its  construction.  It  would  only 
prove  how  other  parties  had  considered 
similar  contracts.  Indeed,  it  would  hard- 
ly prove  so  much,  for  if  other  owners  of 
yards  had  retained  possession  of  the  prop- 
erty there  manufactured,  it  might  be  by 
consent,  or  for  the  convenience  of  the  par- 
ties, and  not  under  the  claim  of  any  legal 
right.  Besides,  the  contract  expiessly  ad- 
mits that  Evans  would  be  entitled  to  a 
share  of  the  bricks,  and  stipulates  that 
Hunting  &  Lawrence  might  retain  the 
same  as  security  for  an.v  lialance  which 
was  or  might  be  due  from  him  to  them  ; 
BO  that  the  evidence  of  usage,  if  it  were 
admissible,  would    be  wholl.v   immaterial. 

The  remaining  question  is.  whether  be- 
fore the  attachment  by  the  defendant 
there  was  a  valid  sale  from  Evans  to  the 
plaintiffs.  It  is  ol)jected  in  the  first  place, 
that  the  contract  of  sale  wasnot  loraplet- 
ed,  because  the  bricks  had  not  been  count- 
ed according  to  the  stipulation  lietween 
the  parties  to  that  effect.  Ari<l  if  the 
counting  was  intended  by  the  parties  to 
precede  the  completion  of  the  sale,  then 
undoubtedly  the  objection  must  prevail. 
The  evidence,  however,  does  not  support 
this  objection,  but  rather  shows  that  the 
sale  was  considered  as  complete  and  ab- 
solute  at  the  time  when  the  settlement 
between  Evans  and  the  plaintiffs  was 
made;  or  at  least  the  jury  would  he  war- 
ranted by  the  testimony  of  Hunting,  to 
find  that  such  was  the  intention  of  the 
contracting  parties.  Tlie  whole  bricks 
'vere  estimated  at  370  thousand.  Evans 
sold  his  share  in  the  whole  and  received 
pay  in  account,  and  a  balance  was  due  to 
the  plaintiffs  which  was  to  be  paid  for  in 
carting  the  bricks,  so  far  as  that  might 
go.  It  is  true  the  liricks  were  to  be  count- 
ed, but  that  was  to  be  done  to  enable  the 
parties  to  come  to  a  settlement  of  their 
accounts,  and  not  for  the  purpose  of  com- 
pleting the  sale.  Taking  the  whole  of 
Hunting's  testimony  together,  this,  we 
think,  is  the  reasonable  inference  to  be 
drawn  from  it.  If  the  bricks  had  been  ac- 
tually delivered,  there  could  have  been  no 
question    that    the   sale  would    have  been 


MACOMBER  o.  PAUKER. 


529 


complete,  notwithslniidinK  the  bricks 
were  to  he  afterwards  cnunted.  The  Ken- 
ertil  iiriiiciple  is.  that  where  any  operation 
of  wcislit,  ineuHureuieiit.  coiuititif;  or  tlie 
lll<e,  rcii.diim  to  lio  performed,  in  nriler  to 
aHcertain  tlie  price,  the  (|uaiitity  or  the 
particular  ((itnmoility  to  l>e  delivere(i,nn(l 
to  put  it  in  adeliverablo  Htate,  the  ccjn tract 
is  incomplete  until  such  operation  is  per- 
formed. Urown  on  .Sale.i,  44.  Hut  where 
the  (.rooils  or  commodities  are  actually 
delivered,  that  shows  the  intent  of  the 
parties  to  complete  the  sale  liy  the  deliv- 
ery, an<l  the  weishins  or  mensurinK  or 
counting  afterwards  would  not  he  consid- 
ered as  any  part  of  the  contract  of  sale, 
hut  Would  he  taken  to  refer  to  the  adjust- 
ment of  the  final  settlement  as  to  the  price. 
The  sale  would  he  as  complete  as  a  sale 
upon  credit  hefore  the  actual  payment  of 
the  price.  Nothiufi  can  he  f<iund  in  any 
of  the  numerous  cases  on  this  point,  whicii 
militates  a;;ainst  this  positiou. 

U'e  come,  then,  to  the  second  objection 
to  the  sale,  namely,  that  there  was  no  de- 
livery. In  answer  to  this  objection  it  was 
said,  as  Evans  agreed  to  cart  the  bricks 
and  did  actually  cart  one  load  after  the 
sale,  this  may  be  considered  as  a  delivery 
of  a  part  umler  an  entire  sale,  and  so  ac- 
cordiiiK  to  the  authorities  would  amount 
to  a  constructive  delivery  of  the  whole. 
I'erhaps  this  may  he  so,  hut  we  do  not 
think,  under  the  circumstances  of  this  case, 
that  any  actual  delivery  was  necessary. 
The  plaintiffs  were  in  fact  as  much  in  pos- 
LAW  .SALhS — 34 


Bession  o(  the  bricks  hh  Evumh  woh;  he 
was  their  aKent;  the  bricks  were  retiinln- 
ins  in  their  yard,  and  under  the  circum- 
stances proveil,  a  delivery  would  he  nlto- 
Kether  an  unmeanin;;  ceremony.  The 
plaintiffs  aoceptefl  the  hrii-ks,  i;ave  ordeiv 
t(j  Evans  to  cart  tiK'm,  and  in  all  respecls 
treated  them  as  their  property.  The  sale, 
tlieref(jre,  amounleil  to  a  transfer,  aad 
was  so  considered  by  the  parties. 

Then  it  was  ol)jected,  that  the  sale  was 
void  liy  the  statute  of  frauils;  hut  as  here 
was  a  delivery  of  a  part,  that  alone  would 
take  the  i-ase  out  of  theslatute.  But  that 
which  took  place  was  eijuivalent  to  a  de- 
livery of  tlie  wh<;le,  and  therelore  theslat- 
ute of  frauds  can  have  no  application. 
Whether  this  sale  was  void  as  against 
creditors,  is  a  (jucstion  not  now  to  be  con- 
sidered ;  nor  have  we  considered  the  ques- 
tion,  whether  the  plaintiffs,  before  the  sale, 
had  a  lien  on  the  brick  as  security  lor  the 
balance  due  them  from  Evans,  since  our 
opinion  as  to  the  sale  renders  this  (jues- 
tion  immaterial.  These  <|uestioDs  may  be 
raised  <in  another  trial,  but  at  present  wp 
contine  ourselves  to  the  two  questions 
reserveil  by  the  report.  As  to  one  of 
these  questions,  n'\mely,  that  touching 
the  sale,  evidence  may  be  offered  by  the 
defendant  which  may  have  a  material 
bearinjr;  but  as  the  evidence  is  reporfcfl. 
we  are  all  of  ojiinion  that  the  plaintiffs 
have  made  out  a  [irima  facie  case,  and  the 
nonsuit  must  be  set  aside  and  a  new  trial 
.  granted. 


McCONNELL  v.  HUGHES. 


531 


McCONNELL  v.  HUGHES. 
(2!1  Wis.  537.) 
Supremo  Court  of  Wis 


Wisconsin.     January  Term, 

l!57J. 


Appeal  from  circuit  court,  Ureeii  Luke 
county. 

Ryan  &  Kirobnll,  for  af)pellnnt.  A.  B. 
Hamilton  and  Butler  &  VVinl{ler,  for  re- 
HI)oiii]unt. 

LYON,  .1.  The  bill  of  exceptions  does 
not  |)urp()rt  to  contain  all  of  the  evl- 
ilciife. 

We  cntinot,  tluTcforc,  review  the  evi- 
dence, but  luuHt  preMunie  that  it  HiiHtniuH 
the  lindintis  of  fact  by  the  ciicnit  court. 
That  court  havini;  found  that  then)aterial 
nllfgntions  of  the  complaint  were  |)roved, 
it  follows  that  if  the  complaint  statcH  a 
valid  cause  of  action,  the  plaintiff  was  en- 
titled lo  judKUient. 

We  think  that  the  complaint  does  state 
a  valid  cause  of  action.  It  avers  that  an 
executory  contract  for  the  sale  and  iiur- 
chase  of  wheat  was  made  by  the  partii^s, 
and  that,  in  pursuance  thereof,  the  plain- 
tiff delivered  to  the  defendants,  and  the 
defendants  acccpteil  and  received  the 
wlieat.  It  must  lie  true  that  by  such  de- 
livery and  acceiitanc(!  the  title  to  the 
wheat  became  vested  in  the  defendants, 
and  the  ri^iht  to  have  the  price  therefor, 
when  the  same  should  be  determined  as 
pr(»vided  in  the  contract,  in  like  manner 
became  vested  in  the  plaintiff. 

But  it  is  ursed  on  benalf  of  the  defend- 
ants tliat  the  transaction  was  invalid  as 
a  sale,  l)ecause  the  contract  did  not  lin)it 
the  plaintiff  to  the  selection  of  any  i)artic- 
ularday,orof  a  day  within  a  specilied 
time,  on  which  the  market  price  of  wheat 
in  Milwaukee  should  control  the  i)rice  of 
the  wheat  in  (lucstion,  but  left  him  the 
o|>ti()n  to  select  any  day  in  the  future  for 
the  purpose  of  fixinjr  the  price. 

The  contract  furnishes  a  criterion  for  ns- 
certainiuK    the    t)rice    of    wheat;    leavini; 


nothiiiK  In  relation  thereto  for  further 
negotiation  between  the  parties.  This  in 
all  that  the  law  re(|uiicM.  .Story  on  Sales, 
§220.  No  casB  has  been  cited,  and  we  are 
unable  to  find  one,  which  holds  that  It  Is 
essential  to  the  validity  of  a  sale  in  such 
cases  that  the  criterion  agreed  upon 
should,  by  the  terms  of  the  contract  nf 
sale,  be  apidicd,  and  the  price  tlieieby  de- 
ternnned,  on  any  specilied  day  or  within 
a  specified  time.  ,Iuil};e  Story,  In  the  sec- 
tion of  his  treatise  above  cited,  evidently 
does  not  intend  to  lay  down  any  such 
rule.  It  may  be  that,  if  the  pliiint'iff  had 
delayed  unreasonal>ly  to  make  such  selec- 
tion after  beins  requested  to  make  the 
same,  he  noRht  be  comiiellod  to  do  so. 
But  we  do  not  decide  this  |)id:it. 

It  is  further  argued  that,  after  a  valid 
sale  and  before  payment  of  the  jirice,  there 
must  be  a  debt  owinc  by  the  vendee  to  the 
vendor,  while  in  this  case,  until  the  price 
of  the  wheat  was  ascertained,  there  was 
no  indebtedness.  The  latter  part  of  this 
I)ro|)c)sition  is  erroneous.  As  soim  as  the 
wheat  was  delivered,  thedift-ndants  owed 
the  iilainliff  therefor.  There  was  there- 
fore a  debt,  but  the  nmo\int  thereof  was 
not  ascertuiucd.  It  remalnrd  unliqui- 
dated until  the  price  of  the  wheat  was  de- 
termined. 

The  cd)jectionR  that  the  assessor  couM 
not  list  the  claim  for  the  price  of  the 
wheat  for  taxation,  and  that  the  same 
could  not  be  reiiclieil  by  garnishee  process 
at  the  suit  of  a  creditor  of  the  plaintiff, 
while  such  price  remained  und(tern)ined, 
|)resent  no  practical  dillicultles.  The 
assessor  would  fix  the  value  of  the  deuiaml 
according  to  his  best  judgment  as  in 
other  cases  of  the  valuation  of  propert.v 
and  credits;  and  the  creditor  in  the  gar- 
nishee proceeding  would  prol)ably  be  sub- 
rogated to  the  rights  of  the  plaintiff  in 
respect  to  determining  the  contract  price 
for  the  wheat. 

BY  THE  COURT.  The  judRment  of 
the  circuit  court  is  atlirmed. 


McCRORY  V.  HAMILTON. 


533 


McCRORY  V.  HAMILTON. 

(39  111.  App.  490.) 

Appellate  Court  of  Illinois.    Jan.  34,  1S91. 

Action  by  JameH  numilton  aKoinHt 
William  K.  McCrory.  From  a  judgment 
for  plaintiff,  (lefcnclant  appealed.  Re- 
versed. 

Fryer  &  NenI,  for  appellant.  F.  K.  Dunn 
and  -laniea  W.  Craig,  for  appellee. 

WALJy,  .7.  TliiH  was  an  action  of  delit 
on  a  replevin  bond.  Tlie  replevin  Huit 
was  brought  Octob.-r  10,  IfiS-l.  by  F.  F. 
Rand<ilpli  ugainHt  Robert  Kanefor  a  ()ihiii- 
tity  o(  barrel  staves  and  .heading  valued 
at  $400.  The  writ  was  executed  by  re- 
|)!evying  the  property  and  delivering  it  to 
the  plaintiff. 

The  defendant  died  pending  the  suit  and 
his  adniinisti-ntor  was  made  a  party  in 
his  stead  and  at  the  Seiiteniher  teiin,  ISST, 
the  suit  was  disniisseil  for  want  of  pruse- 
cution.  The  jjroperty  not  having  been 
returned  the  present  action  was  brought, 
resulting  in  a  judgment  of  ?.">VJ  75  in  favor 
of  the  plaintiff  therein,  from  which  an  ap- 
peal is  prosecuted  to  this  court  by  defend- 
ant McCrory,  who  was  the  surety  on  the 
bond.  Th(!  tirst  point  niailein  behalf  of 
the  apiiellant  is,  that  upon  the  death  of 
Kane  the  replevin  suit  abated  and  could 
not  be  revived  against   his  administrator. 

By  See.  123,  Chap.  ;{,  R.  .S.,  it  is  provided 
that  in  addition  to  the  actions  which  sur- 
vive at  common  law  the  action  of  replevin 
(and  others  named)  shall  survive.  Hut 
counsel  urges  that  means  merely  that  it 
shall  survive  only  in  favor  of  the  represent- 
atives of  the  plaintiff,  the  injured  party. 
In  Wehr  v.  Uroolvs,  21  111.  App.  ll.'>,  we 
held  that  the  provision  of  the  statute  is 
not  HO  limited  and  we  see  no  occasion  to 
depart  from  that  ruling. 

It  is  next  urged  tliat  the  judgment  in 
the  replevin  suit  is  not  suUiciently  foiinal 
and  that  it  is  not  in  terms  u  judirment 
that  the  property  be  returned  to  the  de- 
fendant, a.s  alleged  in  tlie  declaration,  but 
merely  that  the  defendant  have  a  writ  of 
retorno  habendo. 

The  objection  is,  as  we  think,  not  sub- 
stantial. While  the  judgment  Is  some- 
what informal. yet  it  is  not  so  defective  as 
to  he  regarded  as  a  nullity.  In  effect  it 
is  an  adjudication  of  cost  against  the 
plaintiff  and  that  theproiierty  be  returned 
to  the  dcfendaL't.  We  are  not  inclined  to 
the  very  technical  view  suggested  by  ap- 
pellant and  must  overrule  tlie  objection. 

Certain  objections  to  the  action  of  the 
court  in  admitting  and  excluiling  evidence 
are  also  considered  not  well  taken,  and  as 
we  think  they  are  not  important  in  the 
view  we  take  of  the  merits  of  the  case, 
they  need  not  be  iliscussed.  The  main 
question  presented  arises  upon  the  evi- 
dence and  the  conclusion  tobedrn  wn  from 
the  stand |)oint  of  the  appellee.  The  proof 
shows  that  Kane  was  a  cooper  and  that 
Randolph  was  a  miller;  that  Ranilolph 
delivered  a  lot  of  the  staves  and  heading, 
of  which  the  property  replevied  was  a 
part,  to  Kane,  from  which  Kane  mn<le 
and  was  to  make  Hour  barrels  to  be  deliv- 
ered to  Randolph;  that  the  material  was 
mostly  worked  u|)  in  this  way  when  Ran- 


dol;)li  gave  notice  to  Kane  that  he  would 
need  no  more  barrels  and  ilemnnded  the 
staves  and  heading  then  on  hand,  which 
demand  not  being  compiled  with  the  re- 
I)k>vin  suit  was  brought.  The  evidence  la 
contlicting  as  to  the  terms  of  the  arrange- 
ment, it  being  contended  ou  the  part  of 
Randolph  that  the  staves  anil  lieading 
were  always  his  property  and  that  Kane 
was  to  be  paid  for  his  wiirk  at  eighteen 
cents  per  barrel;  while, as  Kane  contends, 
the  staves  and  heading  were  sold  to  him 
and  became  his  nljHolute  property  nt  cer- 
tain rates  named,  and  that  he  was  to  pay 
for  the  same  in  barrels  at  certain  i)riceH 
named  for  liarrels  of  ten  and  twelve  hoops 
respectively. 

It  was  evidently  mn<Ie  a  question  before 
the  jury  upon  which  the  case  was  sup- 
l.iosed  to  hinge,  whether  the  material  was 
sold  to  Kane  or  whether  It  always  con. 
tinned  the  property  of  Randolph.  If  the 
latter,  then  it  seems  to  be  conceded  that 
no  more  could  be  recovere<l  in  this  suit 
than  the  amount  of  whatever  was  due  to 
Ivane  for  the  work  done  by  him  when  the 
demand  was  made;  l)ut  if  he  purcliased 
the  property  it  is  assumed  that  the  value 
of  wliat  was  replevied  may  be  recovered 
without  regard  to  the  fact  that  it  was 
not  fully  paid  for. 

It  seems  quite  clear  that  though  the 
form  of  the  transaction  may  have  been  an 
agreement  to  sell  the  materials  to  Kane 
at  certain  rates  and  that  he  should  sell 
the  barrels  to  be  made  out  of  It  back  to 
Randol|)h  at  certain  prices,  yet  it  was  not 
in  any  proper  sense  a  sale  of  properly  on 
either  side  as  that  term  is  usually  under- 
stood. 

It  was  rather  a  delivery  for  the  special 
purpose  of  making  up  into  barrels  which 
were  to  be  delivered  to  Randolph.  Had 
Kane  refused  to  do  this  or  had  he  sold  or 
disposed  of  the  propertj-  in  any  other  way 
he  would  have  broken  his  contract  with 
Randol|di.  The  mere  fact  that  the  wlt- 
I  newses  may  use  the  terms  sell  or  sale  or 
that  the  parties  may  have  used  them,  will 
not  make  it  a  sale  when,  upon  a  consider- 
ation of  the  whole  matter,  it  ai)pears  that 
there  was  no  sale. 

We  can  not  believe  that  it  was  intended 
by  the  parties  to  change  the  general  own- 
ershi|>  of  the  property,  and  whdo  Kane 
may  have  been  and  was  invested  with  a 
special  ownership  or  interest.  It  was  for 
the  puriiose  and  upon  the  express  trust 
that  ho  would  do  certain  work  upon  it 
and  return  it.  He  was  to  liecharged  with 
it  at  certiiin  |)rires  nnti  was  to  be  credited 
with  certain  prices  upon  what  lie  was  to 
return.  It  is  a  misuseof  terms  to  rail  this 
a  sale  on  either  side. 

Kane  had  a  lieu  for  any  balance  due  hini 
for  the  Work  done,  and  If  liandolpli  ini- 
prc>i(erly  [irevented  him  frou)  manulac- 
turing  the  rest  of  the  material,  he  was 
also  entitled  to  fair  compensation  for  dam- 
ages thereby  sustained  .-ind  his  lien  woulil 
include  that  item  also;  liuf  we  are  of  the 
opiidon  that  this  is  the  full  extent  of  his 
demand,  in  any  event,  even  accepting  the 
testimony  offered  by  the  a  |)  pel  lee  as  the 
true  version  of  the  matter.  The  judgment 
must  therefore  be  reversed  and  the  cause 
remanded. 

Reversed  and  remanded. 


MALLOKY  V.  WILLIS. 


5:;5 


MALLORY  V.  WILLIS. 

(4  N.  Y.  7«.) 

Court  of  Appeals  of  New  York.     ISoO. 

Rppleviii  for  sfvent.v-flvc  burrclnof  flour. 
Tlu>  pliiintiffs  hiid  contractPd  with  the 
(Icft'tiilii II I. Christopher  U'illiH.  to  di'liver  ut 
tlie  Ho|ict()ii  Mills  a  (|iiiiiitity  of  k'kxI 
iiiL'U'h;iiit!il)li'  wheat  to  lie  niMiiiifaetureil 
into  flour  on  the  following  terniH: 
For  every  four  linslii'lK  und  fifteen  pounds 
of  wheat,  Cliiislopfier  WilllH  was  to  de- 
liver one  hnndred  and  ninety-wix  poundn 
of  superfine  flour,  puckeil  in  liarrels  to 
be  furiii-ihed  by  the  plaintiffs.  Said 
Willis  was  to  Kuarantee  t!;e  inspection  of 
the  flour,  anil  if  scratched,  to  pay  nil 
losses  sustained  therehy.  Tlie  plaintiffs 
were  to  have  all  tl)e  offals,  or  feed,  etc.; 
tlie  suid  Willis  to  store  the  saiiie  until 
sold.  The  plaintiffs  were  to  i)ay  si.xteen 
cents  for  e;ich  liarrel  so  manufactured, 
and  if  tliey  upkIc  one  shillinj;  net  profit  on 
every  liarrel,  they  were  to  ])ay  said  Willis 
two  cents  i)er  liarrel  extra. 

The  plaintiffs  delivered  thirty-two  thou- 
KOnil  five  luindred  and  eighty-six  bushels 
and  four  |)oiinds  of  wheat  at  the  Hopeton 
Wills,  and  received  seven  thousand  six 
hundred  and  sixty-seven  barrels  and  one 
hundreil  and  lifty-six  pounds  of  flour,  pur- 
suant to  the  aureenient.  The.v  brought 
this  action  of  replevin  aiiainst  Christopher 
Willis  and  Charles  P.Willis,  to  recover  the 
surplus  of  seventy-five  barrels  still  diie  un- 
d(  r  the  c(jntract.  The  defendant  Insisted 
that  the  title  to  the  wheat  passed  to  Wil- 
lis by  force  of  the  delivery  uinler  tiie  con- 
tract, and  that,  therefore,  the  plaintiffs 
<-ould  not  recover  the  flour  manufactured 
from  the  same  wheat.  .lud^nieiit  was 
rendered  in  favorof  the  plaintiffs  by  Pratt, 
.1..  anrl  aflirrned  by  the  jieneral  term. 
The  defendants  brouj;ht  this  appeal. 


J.    S.    (Jlover,    for    appellants. 
Wells,  for  regpondents. 


S.    H. 


HURLBUT,  J.  If  the  contract  was  one 
of  fiailment,  and  if  by  a  proper  construc- 
tion of  it  the  defendants  were  entitled  to 
the  surplus  flour,  I  think  Hiebunlen  would 
have  rested  on  them  of  showing  that  the 
article  in  f|UPstion  was  such^iurplus.  after 
the  plaintiffs  had  established  that  it  was 
the  produce  of  their  wheat ;  so  that  tnk- 
iuK  the  most  favorable  view  for  the  cie- 
fendants,  there  was  no  error  in  point  of 
law  ill  this  liranch  of  the  decision  at  the 
circuit,  which  would  entitle  them  to  ex- 
cept, and  t he  only  (|uestion  for  our  deci- 
sion is,  whether  tliecontra<-t  and  thedeliv- 
ery  under  it  amounted  to  a  sale  or  a  bail- 
ment of  the  wheat? 

The  defendants  refer  us  to  that  part  of 
the  contract  which  binds  them  to  deliver 
a  barrel  <if  superHne  flour  ami  to  iiuar- 
nntee  its  inspection,  for  every  four  ami 
one-fourth  bushels  of  wheat,  which  it  is 
alleged,  if  the  plaintiffs'  construction  is  to 
prevail,  is  not  only  an  unreasonable  and 
hard  contract  for  the  defendants,  but  is 
altoKether  inconsistent  with  the  notion 
of  a  bailment ;  fur  it  is  asked,  if  it  were 
not    a    Hah',  why    shouhl    the  defendantH 


Kuaranteo  thRt  the  flour  should  bear  In- 
Mpectidii.  or  why  sliould  they  acree  for  a 
certain  (|nantity  of  wheat  to  deliver  a 
barrel  of  (h.ur?  It  may  be  rein.irked  In 
answer  to  this,  that  the  defendantM  belntj 
ex|ierienceil  millers  niust  be  deemed  to 
have  contracted  with  a  knowl'due  of  the 
Muantily  of  wheat  renuired  to  yield  a 
barrel  of  flour;  and  an  the  plaintiffs  were 
obliged  by  the  contract  to  deliver  uood 
merchantable  wheat,  it  seeniH  but  rea.-ton- 
alile  that  the  defendants  hIiouIiI  have  been 
required  so  to  mannfucture  It.  us  that  the 
flour  would  bear  inspecliori;  that  iheHe 
provisions  must  be  viewed  In  the  connec- 
tion in  which  they  stand,  and  rt>reive  a 
construction  wliich  shall  make  them  liar- 
tnonize  with  the  whole  expression  of  the 
contract  between  the  parties;  and  that 
taking  the  whole  UKreement  into  view, 
they  seem  to  have  been  inserted  at  the 
8UK;je8tion  of  tlie  plaintiffs,  for  the  pur- 
pose, in  part,  at  least,  of  caiiHiiiK  a  skill- 
ful and  prudent  manufacture  of  the  wheat 
into  flour;  and  even  if  they  were  em- 
ployed to  define  the  quantify  of  flour  to 
be  returned,  they  would  not  overlienr  the 
other  provisions  of  the  nt;r«'ement,  which 
import  very  clearly  an  underHtandinK 
between  the  jiarties  tliat  the  identical 
wheat  which  whs  delivered  by  the  plain- 
tiffs should  be  manufactured  into  flour  (or 
their  beneflt;  that  they  were  to  pay  for 
the  work  a  stipulated  prii-e  in  money, 
anil  to  receive  the  manufactured  article, 
together  with  the  offals  or  feed,  which 
should  come  from  the  wheat.  The  lan- 
jruai^e  of  the  ni;reement  will  hardly  bear  a 
different  construction.  The  plaintlffM  by 
its  terms  were  to  deliver  wlii-at  to  he 
manufactured  into  flour,  which  Willis 
airreed  to  lio— i.  e.,  he  a^rreed  to  mniiu- 
faclure  the  wheat  so  to  be  delivered  into 
flour.  I5ut  this  provision  would  be  en- 
tirely oiitfif  place  in  ane.vcliaime  of  wheat 
lor  flour.  The  jilaintiffs  were  t«)  furnish 
the  liarrels  in  which  it  was  to  be  packed; 
thus  providing  every  material  forthecom- 
pletion  of  the  work,  and  leaving  nothinK 
for  Willis  to  do  but  to  perform  the  pro|ier 
labor  of  a  manufacturer.  The  plaintiffs 
were  moreover  to  have  all  the  offals  or 
feed,  etc.:  not  such  a  quantity  of  oifals  as 
would  proceed  from  like  quantity  of  other 
wheat,  but  the  offals  or  feed— i.  e.,  such  as 
should  come  of  };rindiuK  the  very  wheat 
ilelivered  to  the  miller,  who  was  also  to 
store  the  feed  until  the  plaintiffs  could  sell 
it.  And  in  case  Willis  perfiiru:eil  on  his 
part,  i,  e.,  in  ease  he  mniiufartured  the 
wheat  so  delivereil  into  flour,  with  the  re- 
quisite skill  anil  jirudence.  the  plaintiffs 
weiv  to  pay  him  at  the  rate  of  sixteen 
cents,  or  in  a  certain  contiuKi'ncy  eight- 
een cents  per  barrel,  as  .a  cotnpensation 
for  the  labor  of  mnnufacture.  Proper 
effect  cannot  be  iriven  to  these  provisions 
of  the  agreement,  without  treating  It  as 
a  contract  liy  the  defendants  to  inaniifar- 
ture  the  plaintiffs"  wheat  Into  flour,  to  de- 
liver to  them  thesptvilic  proceeds, at  least 
to  the  extent  mentioned  in  tie  contract, 
and  to  receive  in  satisfaction  for  the  work 
the  stipulated  price  per  barrel.  Contractu 
of  this  sort,  which  have  received  a  differ- 
ent construction,  will   be   found    to   have 


536 


MALLORY  V.  WILLIS. 


differed  very  niateriall.v  from  the  present 
in  their  terms,  as  will  be  seen  by  a  l)riof 
reference  to  the  leading  cases. 

In  Buffuni  v.  Merry  (3  Mason,  478),  the 
plaintiff  owned  two  thousand  nine  hun- 
dred pounds  of  cotton  yarn,  and  agreed 
to  let  one  Hutchinson  take  it  at  the  price 
of  sixty-five  cents  per  pound,  and  he  was 
to  pay  the  plaintiff  the  amount  in  plaids, 
at  fifteen  cents  per  yard.  H.  was  to  use 
the  plaintiff's  yarn  in  making  the  warp  of 
the  plaids,  and  to  use  for  filling  other 
yarn  of  as  good  a  quality.  Under  this 
contract  the  yarn  was  delivered  to  H., 
who  failed  without  having  manufactured 
it  into  plaids,  and  assigned  it  with  other 
property  for  the  benefit  of  his  creditors. 
The  question  was  whether  the  property 
in  the  yarn  passed  to  H.  by  the  delivery; 
and  Story,  J.,  said  that  it  did;  holding 
that  it  was  not  a  contract  whereby  the 
specific  j'arn  was  to  l)e  manufactured  into 
cloth,  wholly  for  the  plaintiff's  account 
and  at  his  expense,  and  nothing  but  his 
yarn  was  to  be  used  for  the  purpose. 
That  in  such  a  case  the  projierty  might 
not  have  changed;  Itut  here  the  cloth  was 
to  be  made  of  other  yarn  as  well  as  the 
plaintiff's.  The  whole  cloth  when  made 
was  not  to  be  delivered  to  him,  but  so 
much  only  as  at  fifteen  cents  per  yard 
would  pay  [or  the  plaintiff's  yarn  at  sixty- 
iive  cents  per  pound.  That  this  was  a 
sale  of  the  j'urn  at  a  specified  price,  to  be 
paid  for  in  plaids  at  n  specified  price.  (See, 
also,  Story  on  Bailments,  §  283;  Jones  on 
Bailments,  p.  10:.'). 

In  Ewing  v.  French  (1  Blackf.  [Ind.] 
353),  the  plaintiff  delivered  a  quantity  of 
wheat  to  the  defendants,  at  their  mill,  to 
be  exchanged  for  fiour.  The  wheat  was 
thrown  by  the  defendants  into  their  com- 
mon stock,  and  the  mill  was  subsequently 
destroyed  by  fire.  The  court  held  this  to 
be  a  contract  of  exchange,  or  a  sale  of  the 
wheat  to  be  paid  for  in  flour ;  that  from 
the  moment  the  defendants  received  the 
wheat  they  became  lialile  for  the  flour; 
that  the  wheat  itself  was  not  to  be  re- 
turned, nor  the  identical  flour  manufac- 
tured from  it.  And  this  was  very  well, 
for  the  contract  was,  by  its  express  terras, 
one  of  pxcliange. 

In  Smith  v.  Clark  (21  Wend.  S3),  one 
Hubl)ard  owned  a  flouring-niill,  and  the 
plaintiffs  agreed  with  him  to  deliver 
wheat  at  his  mill,  and  he  agreed  that  for 
four  hushelsand  fifty-fivepounds  of  wheat 
which  should  lie  received,  ho  would  de- 
liver the  plaintiffs  one  barrel  of  superfine 
flour,  warranted  to  bear  inspection.  Here 
was  nothing  which  imported  a  delivery 
of   wheat  for  the  purpose  of  being  manu- 


factured, nor  any  agreement  to  make  it 
into  flour  and  to  receive  a  compensation 
for  so  doing,  at  a  certain  price  per  barrel; 
and  it  is  obvious  that  Hubbard  might 
have  delivered  any  flour  of  tlie  quality 
stipulated  for,  in  satisfaction  of  the  con- 
tract. Hence  it  was  held  that  the  deliv- 
ery of  the  wheat  under  this  agreement 
amounted  to  an  exchange  of  the  wheat 
for  flour,  and  that  Hubbard  on  receiving 
the  wheat  became  indebted  to  the  plain- 
tiffs. 

Jn  Norton  v.  Woodruff  (2  Comst.  153), 
the  defendant  agreed  to  "take"  wheat 
and  to  "give"  them  one  barrel  of  super- 
fine flour  for  every  four  bushels  and  thirty- 
six  pounds  of  wheat;  l)ut  here  also  there 
was  the  absence  of  a  delivery  for  the  pur- 
pose of  being  numufactured, no  compensa- 
tion was  agreed  to  be  given  to  the  miller 
for  his  work,  there  was  nothing  about 
offals,  and  nothing  about  the  wheat-own- 
er's furnishing  barrels  in  which  to  pack 
the  flour.  On  the  contrary,  t/ie  miller  in 
this  case  was  to  furnish  the  barrels.  This 
court  gave  proper  effect  to  the  language 
of  this  contract  by  holding,  that  the  mill- 
er, by  agreeing  to  take  wheat  and  give 
flour  in  return,  had  bargained  for  an  ex- 
change of  wheat  for  flour;  that  any  Hour 
of  the  quality  described  in  the  contract 
would  have  answered  its  requirements, 
and  that  the  property  of  the  wheat  passed 
upon  its  delivery. 

But  in  the  case  under  review,  Willis  con- 
tracted to  manufacture  the  wheat  deliv- 
ered, and  to  receive  compensation  for  his 
labor.  The  flour,  by  whicli  was  intended 
the  produce  of  the  manufacture,  was  to 
be  delivered  to  the  plaintiffs  in  their  own 
barrels,  and  the  offals  were  to  be  kept  in 
store  as  their  jjroperty.  These  features 
give  a  character  to  this  contract  so  ma- 
terially different  from  that  which  is  borne 
by  the  agreements  wliicli  have  received  a 
judicial  construction  in  the  cases  referred 
to,  that  witli  the  fullest  concurrence  in 
the  justice  of  tliose  decisions,  it  may  be 
held  that  the  defendants  were  bailees  and 
not  purchasers  of  the  plaintiffs'  wheat, 
and  b<fund  to  restore  its  proceeds  to  them. 
I  am,  therefore,  of  opinion  that  the  judg- 
ment of  the  supreme  court  ought  to  be 
affirmed. 

JEWETT,  .T.,  also  delivered  an  opinion 
in  favor  of  afflrraing  the  judgment. 

ROGGI.ES,  GAKDINER,  PRATT,  and 
TAYLOJ5,  JJ.,  concurred. 

BRONSON,  C.  J.,  and  HARRIS,  J,  dis- 
sented. 


1 


MAKTINDALK  c.  SMITH. 


539 


MARTINDALE  v.  SMITH. 

(1  Q.  B.  .■W!l.) 

n.  II.  Krister  Term,  I\'.  Vict.     April  15,  l-^ll. 

Ti'dver  for  RoodH  anil  iihatteln,  to  wit, 
Mi.\  HtJU'kM  of  oatH,  etc.,  of  wliieli  piniiitiff 
wii.s  lawfully  |ioMseHK('<!  ii»  of  liin  own 
property,  rieas:  1.  Nol«Milly.  2.  Tlmt 
plaintiff  was  not  posscsHcd  of  the  koo<1h 
and  cliatlclH  a.s  of  his  own  property,  in 
niaiiiicr  an<l  form  etc.     Iskiich  thereon. 

On  the  trial,  l)efore  Alder.son  B.,  at  the 
Cnniherland  Hprin;r  aHhizen,  183!),  it  np- 
I)eared  that  defendant,  heiiin  owner  of  six 
HtaekH  of  ontH  tlien  Mtandiny;  on  his 
around,  sold  them  to  the  plaintiff,  under 
tlie  following;  written  contract. 

"April  L':;d,  ls:!S.  Sold  to  .Mr.  .lohn 
Martindale  of  Catterlen  six  oat  staeUH,  for 
.£S5.  .loliii  Smith  ^iives  .lohn  .Martindale 
lilierty  to  let  the  stacks  stand,  if  he  thinks 
fit,  nntil  tlie  middle  of  August  next;  and 
.John  Marlindale  to  pay  ,lohn  Smith  tor 
the  .stacks  in  twelve  weeks  from  the  date 
hereof."     Sinned  by  the  parties. 

In  the  licKinnin);  of  .Inly,  the  defendant 
told  the  plaintiff  that,  if  lie.  plaintiff,  <lid 
not  pay  on  tlie  Ititli  of  that  month,  de- 
fendant would  consider  the  contract  at 
un  end.  The  plaintilf  liid  not  pay  on  that 
day, but  afterwards  reipiestiMl  time,  wliicli 
the  defendant  refused  to  ;iive,  addiiiy:  that 
plaintiff,  as  he  had  failed  in  i)aynieiit  at 
the  time  apl)ointed  hy  the  contract, 
should  not  have  the  stacks.  Two  or 
three  ilays  afterwards,  the  plaintiff  ten- 
dered the  money  ;  which  the  defeiiilant  re- 
fused to  accept.  On  the  14tli  of  August, 
the  plaintiff  served  defendant  with  a  writ- 
ten notice,  in  which  he  reppate<l  the  ten- 
der, and  staled  that  he  sliould  attend  to 
remove  the  stacks  on  the  next  day  at  ten 
in  the  inorninK,  and  demanded  that  he 
should  he  then  admitted  to  the  held  in 
which  the  stacks  were,  re(iuiriii(;  the  de- 
fendant not  to  sell  thera.  An  actual  ten- 
der was  then  atrain  made,  and  refused: 
and  defendant  afterwards  sold  the  stacks. 
The  defendant's  counsel  contended  that 
plaintiff,  havlntt  made  default  in  payment 
at  the  appointed  day,  was  not  entitled  to 
the  possession.  The  learned  judjie  direct- 
ed u  verdict  for  the  plaintiff,  «ivin>r  leave 
to  move  to  enter  a  verdict  for  the  defend- 
Hnt  on  the  second  issue.  In  Kaster  term, 
1S.'!!I,  Dundas  obtained  n    rule  accordiii;cly. 

Alexander  and  Knovvles  shewed  cause. 
CresHwell,  IJundas,  and  KamBhay,  contra. 

Lord  DKNMAN,  C.  J.  now  delivered  the 
juilKinent  of  the  court.  After  statiii«  tlie 
facts,  his    lordship    proc<'edcd    as  follows: 

UaviiiK  taken  time  to  consider  of  our 
judt;nieiit,  nwinu;  to  the  doubts  excited  hy 
a  most  iiiKcnious  argument,  whether  the 
vetKlor  had  not  a  riirht  to  treat  the  sale 
as  at  an  end  and   reinvest    the  property  ill 


liiinseir  by  reason  ol  the  vendee's  failure  to 
pay  the  price  at  the  a|ipoiiited  time,  we 
are  clearly  of  opinion  that  he  had  no  such 
richt,aiid  that  the  action  is  well  brought 
against  him.  F.ir  the  sale  of  u  specilic 
chattel  on  credit,  thonuli  that  creilit  miiy 
be  limited  to  a  delinite  period,  traiisferH 
the  property  in  the  >;oods  to  (he  vendee, 
KiviiiK  the  vendor  a  rinlit  of  actiiiii  for 
the  iirice,  and  a  lien  upon  tlie  Koods,  If 
they  remain  in  his  possession,  till  tlial 
price  be  [)aid.  But  that  default  of  pay- 
ment does  not  rescind  the  contract.  .Such 
is  the  doctrine  cited  by  Hoiroyd  .1.  from 
Com.  Diir.  Agreement.  "(It.  :!.),ln  Tarlintj 
V.  Baxter';  and  it  will  lie  found  consist- 
ent with  all  the  numerous  cases  referred 
to  in  the  course  of  the  ar^ninent.  In  a 
sale  of  chattels,  time  is  not  of  tlie  <"ssciice 
of  the  contract,  unless  it  is  made  so  by 
(■xpress  aKreement,  than  which  nothing; 
can  be  more  easy,  by  introilucinu  condi- 
tional (vords  into  the  bargain.  The  late 
case  of  Stead  v.  Da  n  her- does  not  apply, 
depending;  (as  Parke  B.  truly  observed  In 
Marshall  v.  Lynn, i'' not  on  the  materiality 
of  the  alteration  in  the  contract,  but  on 
the  fact  of  the  alteration  only. 

Pothier,  in  his  Traile  clu  contrat  de 
vente,  part.  V.  ch.  1'.  s.  (!,' rites  tliefivil 
Code  for  the  firoposilion,  that  a  purclias. 
er's  delay  in  paying  the  price  does  not 
>;ive  the  vendor  a  rialit  to  reijuire  a  disso- 
lution of  the  contract ;  he  can  only  exact 
by  le^al  procedure  the  payment  of  the 
price  due  to  him.  "  Xon  ex  eo,  ijuoil 
emptor  iion  satis  conventiimi  fecit,  con- 
tractus irritns  constitiiitur.  "•'•  lie  adds, 
however,  that,  from  the  dilliciilly  of  en- 
forcing payment  from  debtors,  tlie  Krencli 
law  had  departed  from  the  riiiour  of  tlie.Ke 
principles,  perniittini;  a  suit  for  the  disso- 
lution of  the  contract  for  default  of  pay- 
ment. Thejudse  then  appointed  a  more 
distant  day;  which  passed,  and  no  pay- 
ment made,  the  vendor  was  permitted  to 
resume  possession  of  the  tiling  sold.  But, 
even  after  sentence  of  dissolution,  the 
purchaser  may  prevent  that  effect,  niiil 
keep  what  he  has  liou»<ht,  by  appealing, 
and  offering,  on  that  appeal,  the  price 
which  he  owes,  with  interest  andexpeiises. 

The  vendor's  right,  therefore,  to  ilelnin 
the  thinn  sold  afj;ainst  the  purchaser  must 
t)e  considered  as  a  right  of  lien  till  the 
price  is  paid,  not  a  right  to  rescind  the 
bargain.  And  here  the  lien  was  gone  hy 
tender  of  the  price.  My  brother  .Mderson 
directed  the  jury  according  to  these  prln- 
ciiiles:  and  the  rule  for  settint?  aoiile  the 
verdict  must  be  discharged. 

lUile  discharged. 


■  C  B.  &  C.  3C.n,  :!(52. 
>  10  A.  &  E.  57. 
'G  M.  &  \V.  117. 
•Art.  ■17."'>.     (Oriivres.  I 
"Cod.  lih.  iv.  lit.  44,  5  14. 


■  1  p.  OIO.  '.M   IM.) 


MAUVIX  SAFE  UO.  o.  NORTON. 


rAl 


MAIIVIN  SAFE  CO.  v.  NORTON.  | 

(7  All.  Rep.  418,  48  N.  J.  Uiw,  410.) 

Siiiireiiiu  Court  of  New  .Jersey.     Nov.  21),   IS'nO. 

On  rertiornri   to   Mercer  coininoii  pious. 

On  May  1,  lSS4,oiie  Samuel  N. Schwartz, 
of  UiKlitHtdWii,   .Mercer   couiily,    New  .ler- 
ney,    went  to  I'hilailelpliia,   I'eniisylviniia, 
and  there,  in  tlie  ollice  of  the  pro.seculorH, 
e.xeeiiled  thefollowintj  instrument :    ".May 
1,    1S.S4.     .Marvin    Safe    Company:     I'lease 
send,   as   per   mark  ^iven  below,   one  sec- 
ond-hand safe,  for  wliieh  the   un<lersit;ned 
ajirees   to    pay  the  sunt  of  eighty-four  dol- 
lars, (!ifs4,  |  seven  dollars  ca.sh,  and  halance 
seven   dollars    per   iiiontli.      Terms   cash, 
dclivere<l  on  hoard  at  i'liila<lelphia  or  New  ' 
York,  unless  otherwise  stated    in   writing. 
It  is   agreed    that    Marvin    Safe  Company 
stinll  not  relin<|uish  its  title   to   said    safe, 
hut  shall  remain  the   sole   owners    thereof 
until  aliove   sum    is   fully    paid   in  money.  I 
In  event  of  failure  to  pay  any    of  said   in- j 
stnllments   or   notes,  when  same  shall  be- 
come  duo,  then    all    of    sai<l    installments  I 
or   notes    remaiuinn   unpaid    shall   Imme-' 
<liately     become    due.     The    Marvin    Safe' 
Company    may,  at    their   o|)tioii,   remove' 
said  safe  without   lei;al   process.     It  is  ex- ■ 
pressly  iindeistood  that    there  ore  no  con- 
tlitions  whatever  not  stated  in    this  mem- 
orandum, and    the    undiTsijined  ay;i-ees  to 
accept    and    pay   for    safe    in    accordance 
tlieri'with.     Samuel  N.  Schwartz.     .Mark: 
Samuel    N.   .Schwartz.    IliKhtatown,  New 
.lerse.v.       Route,    New    .lersey.       Not    ac- 
countal)le  for   damages   after  shipment." 
Schwartz    paid     the    first    installment    of 
seven    dollars.   May    1,  1SS4,    aiul    the   safe 
was  shipped    to   him    the   same  day.     lie 
afterwards     paid      two     installments     of 
seven  dollars  ouch,  by  remittance   to  I'hil- 
ailelpliia by    check.     Nothing    more    was 
paid.     t)n  .Inly  30,  1.SS4.  Schwartz  sold  and  ' 
delivered    the     safe   to     Norton    for    $.V). 
.Norton     paid    him    the   purchase    money. 
He  hou>::ht  and    paid   for  the  safe  without 
notice   of  Schwartz's  asreemont  with  the 
prosecutors.     Norton    took    possession  of 
the    safe,  and  removed    it    to     his    ollice. 
Schwartz  is  insolvent  and  has  absconded. 
The   prt)secutor   brouftht    trover   against 
Norton,  and  In    the   court    below    the   do- ^ 
fondant  recovered  judgment  on  the  Kronnd  : 
that,  the   <le!eudant     having    bou;;ht    and 
linid    for   the   safe   bona    tide,  the    title  to  j 
the  safe,  by  the  law  of  ronnsylvania,  was 
transferred  to  him. 

Ileforc  .lustices  DEPUE,  UIXON,  and 
REED. 

A.  S.  Apiiolset,  for  plaintiff  in  certiorari. 
S.  .M.  Schanck,  contra. 

niCIH'E.  J.  The  contract  e.xpressed  in 
the  written  order  of  May  1,  1.SS4,  signed 
by  Sell wartz,  is  for  the  sale  of  the  prop- 
erty to  him  conditioiiallv  ;  the  vendor  re- 
servinjj;  the  title,  notwithstanding  deliv- 
ery, until  the  contract  price  should  be 
paid.  Tim  courts  of  Pennsylvania  make 
a  distinction  between  the  bailment  of  a 
chattel,  with  power  in  the  bailee  to  be- 
come tlie  owner  on  payment  of  the  price 
atrreed  upon,  and  the  sale  of  a  chattel, 
with   a  stipulation  that  the  title  shall  not 


pass  to  the  purchnsor  until  the  contract 
price  shall  be  paid.  On  this  distinction 
the  courts  of  that  state  hold  that  a  bail- 
ment of  chattels,  with  an  option  In  the 
bailee  to  become  the  u wner  on  pa vment 
of  the  price  aKrecd  upon.  Is  vallil,  and 
that  the  rlKlit  of  the  bailor  to  reHuine 
possession  on  Don-payment  of  the  con- 
tract price  is  secure  a;;ainst  creditors  of 
the  bailee  and  bfina  fide  purchaHors  from 
him:  but  that,  upon  tlie  delivery  of  per- 
sonal pro|ierty  to  a  purchaser  under  a 
Contract  of  sale,  the  reservation  of  title 
in  the  vendor  until  the  contract  price  Irt 
paiil  is  void  as  ntf.'iinst  creditors  of  the 
purchaser,  or  a  bona  llde  |iurclia-ior  from 
him.  Clow  V.  Woods.  5  SerR.  &  R.  275; 
Eolow  V.  Klein,  T'J  Pa.  St.  4hs;  Ilnak  v. 
I-inderman,  lU  Fa.  St.  4'.i!t;  Stadtfeld  v. 
Huntsman,  it:,'  I'a.  St.  iVl:  lirunswick,  etc., 
Co.  V.  Hoover, l).">  Fa.  St.  ."JOS  ;  1  llenj.  Sales. 
(Corbin's  Ed.)  §  4J(;;  21  Amor.  Law  Rec 
(N.  S.)  224,  note  to  Lewis  v.  McCabe.  In 
the  most  recent  case  In  the  sujireme  court 
of  Pennsylvania,  Mr.  Justice  Sterrett  oald: 
"  .-V  present  sale  and  ilelivery  of  personal 
propeity  to  the  vendee,  coupled  with  an 
aereeinent  that  the  title  shall  not  vest  in 
the  latter  unless  he  pays  the  price  a;?reed 
upon  at  the  time  appointed  therefor,  and 
that,  in  default  of  such  payment,  the  ven- 
dor may  recover  possession  of  the  prop- 
erty, is  (juite  different  in  its  effect  fr>»in 
a  bailment  for  use.  or,  as  it  is  sometimeH 
called,  a  lease  of  the  propert.v,  coupled 
witli  an  afrreenient  whereby  the  lessee 
may  subseiiuently  become  owner  of  the 
jiroperty  upon  payment  of  a  price  agreed 
upon.  As  between  the  parties  to  such 
contracts,  both  are  valid  ami  binilinK; 
but.  as  to  creditors,  the  latter  Is  ^food, 
while  the  former  is  invalid."  Forrest  v. 
Nelson,  i;>  Reporter,  :!S,  Ids  Pa.  St.  4S1. 
The  cases  cited  show  that  the  Pennsyl- 
vanin  courts  hold  the  same  cloctrine  with 
respect  to  bona  fide  purcliascrs  aa  to 
creditors. 

In  tliis  state,  and  in  nearly  uU  of  our 
sister  states,  c<mditlonal  sales — that  in, 
sales  of  personal  property  on  credit,  with 
delivery  of  possession  to  the  purchaser, 
and  a  stipulation  that  the  title  sludl  re- 
main in  the  vendoruntil  theconlract  price 
is  paid — have  been  held  valid,  not  only 
against  the  iinmeiliate  purchaser,  but  also 
against  his  creditors  and  bona  tide  pur- 
chasers from  him,  unless  the  vendor  h»8 
conferred  upon  his  vendee  indicia  of  title 
be.vond  mere  possession,  or  has  forfeited 
his  rifiht  in  tlie[>ropprty  by  conduct  which 
tlio  law  rejrards  as  fraudulent.  The  cases 
are  cited  in  Cole  V.  Perry,  42  N.  .i.  Law, 
:WS:  .Midland  R.  Co.  v  Hitchcock,  :J7  N.  J. 
E(I..-..-)(l,  .".:.!);  1  Benj.  Sales,  (Corbin's  Ed.)§$ 
4:!7-4(;0;  I  Smith,  L.  C.  (Sth  E.l  )  XWM\:  21 
.\mer.  Law  Rok.  (N.  S.)  224,  note  to  Lewis 
V.  McCabe;  l.'>  Anier.  Law  Rev.  .'Wl, 
"Conversion  by  Purchase."  The  iloctrlne 
of  the  courts  of  Pennsylvania  Is  fonmled 
niion  the  doctrineof  Twyne's  Case.S  Coke, 
so.  and  ICdwards  v.  Marben,  2  Term  R. 
.'iN".  that  the  possession  of  chattels  under 
a  con'rnct  of  sale  without  title  is  an  In- 
delible bailiie  of  fraud,— a  doctrine  repu- 
diated qu'te  ceneraliy  by  the  conrts  of 
this  country,  and  cspeclnlly  In  this  Btnte. 
Runvon    v.   (iroshon,    12    N.    J.    Eq.    SG; 


542 


MARVIN  SAFE  CO.  v.  NORTON. 


Broadway  Bank  v.  McElratli,  13  N.  J.  Eq. 
24;  Miller  v.  Pancoast,  2J  N.  J.  Law,  25G. 
The  doctrine  of  the  Peiiiisylvniiia  courts 
is  disapproved  by  tlie  Aincrican  editors  of 
Sinith's  Leading  ('ases  in  the  note  to 
Twyne's  Case,  1  Smith,  Lead.  Cas.  (Stli 
Ed.)  33,  .34;  and  by  Mr.  Landreth  in  his 
note  to  Lewis  v.  McCabe,  21  Ainer.  Law 
Keg.  (N.  S.)  224;  but,  nevertheless,  the 
supreme  court  of  that  state,  in  the  latest 
case  on  the  .suliject, — Forrest  v.  Nelson,  de- 
cided February  Iti,  I8S.5, — has  adhered  to 
tlie  doctrine.  It  must  therefore  be  re- 
garded as  the  law  of  Pennsylvania  that, 
upon  a  sale  of  personal  property  with  de- 
livery of  possession  to  the  i)uicliaser.  an 
agreement  that  title  sliould  not  pass  until 
the  contract  price  should  be  paid  is  valid 
as  between  tlie  original  parties,  bnt  tliat 
creilitors  of  the  purchaser,  or  a  purcliaser 
from  liim  bona  fide  by  a  levy  under  exe- 
cution or  a  bona  fide  piircliase,  will  ac- 
quire a  better  title  than  the  original  pur- 
chaser had,— a  title  superior  to  that  re- 
served by  his  vendor.  So  far  as  the  law 
of  Pennsylvania  is  applicable  to  thetrans- 
action,  it  must  determine  the  rights  of 
these  parties. 

The  contract  of  sale  between  the  Marvin 
Safe  Comiiany  and  Schwartz  was  made 
at  tiie  company's  f)ffice  in  Philadelphia. 
The  contract  contemplated  i)erforniance 
by  the  delivery  of  the  safe  in  Philadelphia 
to  the  carrier  for  tiansportation  to 
Hightstown.  U  lien  the  terms  of  sale  are 
agreed  upon,  and  the  vendor  has  done 
everything  that  he  has  to  do  with  the 
goods,  the  contract  of  sale  becomes  abso- 
lute. Leonard  v.  Davis,  1  Black,  47G;  1 
Benj.  Sales,  §  31)8.  Delivery  of  the  safe  to 
the  carrier  in  pursuance  of  the  contract 
was  delivery  to  Schwartz,  and  was  the 
exccntidn  of  the  contract  of  sale.  His 
title,  such  as  it  was,  under  the  ti^rms  of 
the  contract,  was  thereupon  complete. 

The  validity,  construction,  and  legal 
effect  of  a  contract  may  deiiend,  either 
upon  the  law  of  theplace  where  it  is  made, 
or  of  the  i)lace  where  it  is  to  be  per- 
formed, or,  if  it  relate  to  movable  prop- 
erty, upon  thp  law  of  the  situs  of  the  prop, 
erty,  according  to  circumstances;  but, 
when  the  place  where  the  contract  is 
made  is  also  the  place  of  performance  and 
of  the  situs  of  the  property,  the  law  of 
that  place  enters  into  and  becomes  part 
of  the  contract,  and  determines  the  riglits 
of  the  parties  to  it.  Frazier  v.  Fredericlis, 
24  N.. I.  Law,  1(12;  Dacosta  v.  Davis,  Id. 
319;  Bulkley  V.  Hanold,19How..390;  Scud- 
(ler  V.  Union  Nat.  Bank,  Ul  IT.  S.  406; 
Pritchard  v.  Norton,  lOG  U.  S.  124,  1  Sup. 
<'t.  Hep.  102;  Morgan  v.  New  Orleans,  M. 
&  T.  K.  Co.,  2  Wood.  244;  Simpson  v. 
Fogo,  9  Jnr.  (N.  S.)  403;  Whart.  Confl. 
Laws,?!)  341,  34.5,  401,  403,  41.s;  Parr  v. 
Brady,  37  N.  .1.  Law,  201.  The  contract 
between  Schwartz  and  the  company  hav- 
ing been  irade  and  also  executed  in  Penn- 
sylvania by  the  delivery  of  the  safe  to 
him.  as  between  him  and  the  company 
Schwartz's  title  will  be  determined  by  the 
law  of  Pennsylvania.  By  the  law  of  that 
state  the  condition  expressed  in  the  con- 
tract of  sale,  that  thesafecompany  should 
not  relinquish  title  until  the  contract 
price    was   paid,   and   that   on  the  failure 


to  pay  anj-  of  the  installments  of  the  price 
the  company  might  resume  possession  of 
the  property,  was  valid,  as  between 
Sell  wartz  and  tlie  company.  By  his  con- 
tract, Schwartz  obtained  jiossession  of 
the  safe,  and  a  right  to  acquire  title  on 
payment  of  the  contract  [nice;  but  until 
that  condition  was  performed  the  title 
was  in  the  company.  In  this  situation 
of  affairs,  the  safe  was  brought  into  this 
state,  and  the  pro|)erty  became  subject  to 
our  laws. 

The  contract  of  Norton,  the  defendant, 
with  Schwartz  for  the  purchase  of  the 
safe,  was  made  at  Hightstown,  in  this 
state.  The  property  was  then  in  this 
state,  and  the  contract  of  piircl  ase  was 
executed  by  delivery  of  possession  iu  this 
state.  The  contract  of  purchase,  the 
domicile  of  the  parties  to  it,  and  the  situs 
of  the  subject-matter  of  purchase  were  all 
within  this  state.  In  every  respect  the 
transaction  between  Norton  and  .St  hwartz 
was  a  New  Jersey  transaction,  tinder 
these  circumstances,  by  princii)les  of  law 
which  are  indisputable,  the  construction 
and  legal  effect  of  the  contract  of  pur- 
chase, and  the  riglits  of  thapurchaser  un- 
der it,  are  determined  liy  the  law  of  this 
state.  By  the  law  of  this  state.  Norton, 
by  his  purchase,  acquired  only  the  title  of 
his  vendor, — only  such  title  as  the  vendor 
had  when  the  property  was  brouglit  into 
this  state  and  became  subject  to  our  laws. 

It  is  insisted  that  inasmuch  as  Norton's 
purchase,  if  made  in  Pennsylvania,  would 
liave  given  him  a  title  superior  to  that  of 
the  safe  company,  that,  therefore,  his 
purchase  hei'e  should  have  that  effect,  on 
the  theory  that  the  law  of  Pennsylvania, 
which  subjected  the  title  of  the  safe  com- 
pany to  the  rights  of  a  bona  tide  pur- 
chaser from  Schwartz,  was  part  of  the 
contract  between  the  company  and 
Schwartz.  There  is  no  provision  in  the 
contract  between  the  safe  company  and 
Schwartz  that  he  should  have  power, 
under  any  circumstances,  tosell  and  make 
title  to  a  purchaser.  .Schwartz's  disposi- 
tion of  the  property  was  not  in  conform- 
ity with  his  contract,  but  in  violation  of 
it.  His  contract,  as  construed  by  the 
laws  of  Pennsylvania,  gave  him  no  title 
which  he  could  lawfully  convey.  To 
maintain  title  against  the  safe  company, 
Norton  must  build  up  in  himseli  a  letter 
title  than  Schwartz  had.  He  can  accom- 
plish that  result  only  by  virtue  of  the  law 
of  the  jurisdiction  in  which  heacquireJ  his 
rights. 

Thedoctrineof  the  Pennsylvania  courts, 
that  a  reservation  of  title  in  the  vendor 
upon  a  conditional  sale  is  vt)id  as  against 
creditors  and  bona  fide  purchasers,  is  not 
a  rule  affixing  a  certain  construction  and 
legal  effect  to  a  ccmtract  made  in  that 
state.  The  legal  effect  of  such  a  contract 
is  conceded  to  he  to  leave  property  in  the 
vendor.  The  law  acts  upon  the  fact  of 
possession  by  the  purchaser  under  such 
an  arrangement,  and  makes  it  an  indel- 
ible badge  of  fraud,  and  a  forfeitui'e  of  the 
vendor's  reserved  title  as  in  favor  of  cred- 
itors and  bona  tide  purchasers.  The  doc- 
trine is  founded  upon  ctjusidera tion  of 
public  policy  adopted  in  that  state,  and 
applies  to  the  fact  of  possession    and    acts 


MARVIN  SAFE  CO.  v.  NORTON. 


543 


of  ownership  under  such  a  contract,  with- 
out rpfianl  to  the  plare  where thecontrart 
was  made,  or  its  ie^ai  eflect  considered  as 
a  contraet. 

In  MacCabe  v.  Biymyre,  9  Thila.  G15,  the 
controversy  was  witli  respect  to  the 
rights  of  a  mortgagee  under  a  chattei 
mortgage.  Tlie  mortgage  had  been  made 
and  recorded  in  Maryland,  wliere  tlie 
chattel  was  when  the  mortgage  was 
given,  and  by  the  law  of  .Maryland  was 
valid,  thougli  the  mortgagor  retained 
poNspKsion.  Tlie  chattel  was  afterwards 
l)riiiiglit  into  Pennsylvania,  and  tlie 
i'ennsylvaiiia  court  lield  that  the  mort- 
gage, though  valid  in  the  state  wliere  it 
was  made,  would  not  l.e  enforced  by  the 
courts  of  I'ciiiisyivania  as  against  a  cred- 
itor or  piii-cliaser  who  liad  ac(iuired 
rights  in  the  projierty  after  it  had  been 
l)r()uglit  to  that  state;  that  the  niort- 
^ngecN  by  allowing  the  mortgagor  to  re- 
tain possession  of  the  property,  and  iiriiig 
It  into  Pennsylvania,  and  exercise  iiolo- 
riouH  acts  of  ownersliip,  lost  his  right,  un- 
der the  mortgage,  as  against  an  interven- 
ing Pennsylvania  creditor  or  purchaser, 
on  the  ground  that  the  contract  was  in 
contravention  of  the  law  and  policy  of 
that  state.  Under  substantially  tlie  same 
stale  of  facts  this  court  sustained  tlie 
title  of  a  mortgagee  under  a  mortgage 
maile  in  an<ither  state,  as  against  a  bona 
lido  purchaser  who  had  boiiglit  the  proii- 
erty  of  the  mortgagor  in  this  -itate, for  tlie 
reason  that  the  possession  of  the  chattel 
by  the  mortgagor  was  not  In  contraven- 
tion of  the  iiuiilic  policy  of  tills  state. 
Parr  v.  P.rady,  37  N.  J.  Law,  '201. 

The  public  policy  whicli  has  given  rise 
to  the  doctrine  of  the  Pennsylania  courts 
is  local,  and  the  law  whicli  gives  effect  to 
it  Is  also  local,  and  has  no  extraterritorial 
I'lfect.  In  the  case  in  hand,  tlie  safe  was 
removed  to  this  state  liy  Schwartz  as 
soon  as  he  became  the  purchaser.  His 
possession,  under  the  contract,  has  been 
exclusively  in  tiiis  state.  That  jiossession 
violated  no  public  policy,— not  the  public 
policy  of  Pennsylvania,  for  the  possession 
was  not  iu  that  state;  nor  the  public  pol- 
icy of  this  state,  for  in   this  state   posses- 


slou  under  a  conditional  sale  is  regarded 
as  lawful,  and  does  not  invalidate  the 
vendor's  title  unless  impeaclied  for  actual 
fraud.  If  the  right  of  a  purihnhir,  under 
a  purchase  in  this  slate,  to  ovoid  the  re- 
served title  in  tlie  original  vendor  on  such 
grounils  be  conceded,  the  same  right  must 
be  extended  to  creditors  buying  under  a 
judgment  and  execution  in  this  state;  for 
by  the  law  of  I'ennsylvnnla  creditors  and 
liona  tide  purciinsers  are  put  upon  the 
game  footing.  Neither  on  prim-iple,  nor 
on  considerations  o(  convenience  or  pub- 
lic policy,  can  such  a  right  be  conceded. 
Umlcr  such  a  condition  of  tlie  law,  confu- 
sion and  uncertainty  in  the  title  to  prop- 
erty would  l)e  introduced,  an<l  the  Irans- 
inission  of  the  title  to  movable  property, 
the  situs  of  which  is  in  this  state,  would 
depend,  not  ujion  our  laws,  but  upon  the 
laws  and  public  policy  ol  sister  states  or 
j'oreign  countries.  \  purchaser  of  chattels 
in  this  state  which  Ills  vendor  had  ob- 
tained In  New  York,  or  in  most  of  our 
sister  states,  under  a  contract  of  condi- 
tional sale,  would  take  no  title;  if  ob- 
tained under  a  conditional  sale  in  Penn- 
sylvania, his  title  would  bi-  good  ;  and  the 
same  uncertainty  would  exist  in  the  title 
of  purchasers  of  property  so  circum- 
stanced at  a  sale  under  judgment  and  ex- 
ecution. 

The  title  was  in  the  safe  company  when 
the  property  in  dispute  was  removed  from 
the  state  of  Pennsylvania.  Whatever 
might  impair  that  title— the  continued 
liossession  and  exercise  of  acts  of  owner- 
ship over  it  by  Sell  wartz.and  the  purchase 
by  Norton — occurred  in  this  state.  The 
legal  effect  and  consc(iuences  of  those  acts 
must  be  adjudged  by  thelaw  of  this  s'ate. 
Dy  the  law  of  this  state  it  was  not  illegal 
nor  contrary  to  public  policy  for  the  com- 
[lany  to  leave  Schwartz  In  possession  as 
ostensible  owner,  and  no  forfeiture  of  tlie 
comiiaiiy's  title  could  result  therefrom. 
By  thelaw  of  this  state,  Norton,  by  his 
Iiuichase,  acquired  only  such  title  as 
Schwartz  had  under  his  contract  with  the 
company.  Nothing  has  ocruried  which 
by  our  law  will  give  him  a  better  title. 

The  judgment  should  be  reversed. 


■ 


MELDRUM  c.  «NOW. 


545 


MELDRUM  el  al.  v.  SNOW. 

(9  Pick.  441.) 

Supreme  Judicial  Court  of  Massachusetts.    Suf- 
folk and  Nantucket.     Murcli  Term,  1S30. 

Replevin  lirouKbt  liy  tlie  |)luin<iff8,  who 
lire  briiWiTH  iti  the  city  of  liostoii,  to  re- 
cover of  tlie  (ii'fertiliiiit,  u  deputy  of  the 
sheriff  of  Suffolk,  eiKlileen  beer  barrels, 
each  containiii';  about  tliirty  ^allonM  of 
beer,  with  liieir  contontH,  bciuK  in  the 
cellar  recently  occupied  by  <ino  Klein,  in 
Market  Htreel ;  which  the  plaintiffs  aver 
to  be  their  property,  and  that  the  defend- 
ant took  and  unlawfully  detained  theaame 
on  the  lirst  day  of  Auy;uHt  ISJS. 

TluMklcndant  pleaded  as  to  the  beer, 
that  it  was  the  property  of  Klein,  and 
that  he,  the  defendant.  IhhI  attached  it 
as  such  at  the  suit  of  Klein's  creditors; 
to  which  the  i)laintiffH  replied  projierty  in 
themselves,  trnversinjr  Kein's  ownership, 
and  issue  was  joined  thereon. 

At  the  trial  before  Wihle  J.  the  plain- 
tiffs proved  that  the  beer  was  Bent  to 
Klein  ill  the  spring,  he  beins;  a  retailer  of 
beer,  and  I'arryinK  on  lii.s  business  in  the 
cellar  where  the  bocr  was  when  it  was  at- 
tached by  the  dofendiint. 

The  plaintiffs  also  [irovcd,  that  aceord- 
inji  to  the  universal  usatie  of  trade  here, 
and  in  other  jilaces  in  this  country,  the 
foUowinji  are  the  terms  upon  which  re- 
tailers are  supijlied  by  the  brewers.  Jn 
the  spring,  the  brewersends  to  the  retailer 
such  (iiiaiitity  as  the  retailer  exjiects  to 
vend,  and  at  a  stipulated  price,  and  in 
barrels  belonKina:  to  the  brewer,  which  are 
returned  to  him  when  emptied.  The  re- 
tailer pays  for  all  that  he  vends  in  the 
course  of  the  season,  at  (he  price  at  which 
It  was  originally  lurnished.  If  the  beer  I 
hecomes  sour  or  stale,  or  is  l(i«t  by  the 
bursting  of  the  casks,  or  by  fire  or  other 
casualty,  the  loss  falls  on  the  brewer.  If  | 
any  beer  remains  unsold  at  the  end  of  the 
Beason,  the  retailer  has  a  ri^lit  to  ivturn  i 
it  to  the  brewer,  but  the  brewer  has  no  | 
riKht  to  take  it  without  hisconsent.  Pay-  i 
meat  is  never  made  liy  the  retailer  in  aU- 1 
Vance,  but  usually  in  annual  or  semian- 
nual settlements,  when  what  lias  been  sold 
Is  paid  for  and  the  residue  is  returned  or 
remains  a  subject  for  future  adjustment. 
The  profits  of  retailinu  beIou>;c  exclusively 
to  the  retailer,  and  all  losses  by  bad  debts 
fall  upon  him.  The  brewer's  price  of  beer 
never  varies.  IJeer  cannot  be  drawn  off 
nor  removed  in  warm  weather  without 
injury  and  y;rent  daiiRer  of   ilestroyiuK   it. 

Sciwden,  a  brewer  in  lioston,  who  has 
carried  on  the  business  for  twenty-two 
years,  testifi>'d,  that  he  nevci'  considered 
the  sale  absolute  till  the  barrel  was 
emptied. 

It  was  testified  that  the  custom  was 
observed  by  the  plaintiffs  in  theirdealinfis, 
and  that  Klein  was  one  of  their  custom- 
ers. 

The  iilaintiffs  also  produced  an  Instru- 
ment nuidc  and  delivered  to  llicm  liy 
Klein  on  the  first  day  tif  .\uKiist.  iircvioiis- 
ly  to  the  service  of  the  writ,  as  follows: — 
"  Whereas  I  have  alwa.vs  holden  the  beer, 
now  in  the  cellar  recently  occu|)icd  by  me, 
LAW  SALES — 35 


in  the  casks  furnished  by  MeUlram  &  Co., 
as  being  of  their  [iroperty  unlesH  pnlrl  for, 
and  the  same  beiiij;  now"  attached  by  my 
ci'editors, ought  of  right,  according  to  our 
contract,  to  be  delivered  up  to  them; 
therefore  and  for  good  and  Tuliiuble  con- 
siderations Die  thereto  moving,  I  do  here- 
by assign  and  transfer  all  my  right,  title 
and  property  therein,  unto  tlie  said  .Mel- 
drum  &  Co.,  they  crediting  me  io  account 
for  what  they  thus  receive." 

Horton,  the  attesting  witness  to  the  nu- 
sigiiment,  testified  that  he  went  with  the 
plaintiffs'  clerk  to  the  defendant,  and  that 
the  clerk  produced  this  instrument  and 
demanded  the  beer  and  barrels,  but  the 
ilefendant  refused  to  give  tlieni  up. 

As  to  the  (luestion,  whether  the  prop- 
erty in  the  beer  was  in  Klein,  the  jury 
were  instructed,  that  if  they  believeil  that 
betook  the  beer  of  the  plaintiffs  on  the 
terms  of  the  custom  above  staled,  the 
property  became  vested  in  him;  that  this 
was  in  fact  a  conditional  sale,  and  the 
beer  could  be  attached  as  belonging  to 
him,  and  the  only  remedy  of  the  plaintlffH 
would  be  to  recover  of  him  the  price. 

The  jur.v  found  a  verdict  lor  the  defend- 
ant. 

The  plaintiffs  moved  for  a  new  trial,  be- 
cause the  judge  Instructed  the  jury,  that 
the  delivery  of  the  beer,  upon  the  terms  of 
the  custom  proved,  constituted  a  condi- 
tional sale  to  Klein,  and  vested  in  him  the 
liroperty  in  the  beer,  subject  to  attach- 
ment for  his  debts ;  wliereas  the  plaintiffs 
contended,  that  such  delivery  vested  only 
a  special  jiropertyin  Klein  for  certain  pnr- 
p(jses;  and  that  the  genera)  property  re- 
mained in  the  plaintiffs ;  so  tlial  the  beer 
could  not  be  iittached  as  the  projierty  of 
Klein:  and  that  by  virtue  of  the  assign- 
ment to  them  of  his  special  property,  they 
became  entitled  to  the  immediate  posses- 
sion, and  acquired  the  whole  title, so  that 
the  detention  by  the  defendant  alter  de- 
mand made,  was  unlawful. 

C.  (i.  lioring  and  E.  O.  Loring.  for  plain- 
tiffs.   S.  I).  Ward,  for  defendant. 
# 

PERCriUAM.  The  principal  cjueBtion 
in  the  case  regards  the  ownership  of  the 
beer.  Evidence  was  given  at  the  trial,  of 
a  custom  among  brewtrs  to  supply  re- 
tailers with  beer  in  the  manner  stated  in 
the  re|)ort  of  the  judge.  It  is  argued  that 
this  mode  of  dealing  is  necessary,  and  it 
should  seem  tr#  be  so;  for  in  general  the 
retailer  would  not  be  able  to  purchase  a 
large  (luantily  of  beer  at  once,  and  it  ap- 
pears that  beer  must  be  supplied  t.>  him 
in  cold  weather,  as  it  cannot  lie  removed 
in  warm  weather  without  Injury.  The 
(inestion  is,  whether  the  beer  is  liable  to 
attachment  as  theproi»erty  of  the  retailer. 
The  contract  is  very  similar  to  that  of 
sale  or  return  in  Euglainl ;  and  in  the  case 
of  some  kinds  of  manufactures  such  a  con- 
tract is  leviuired,  owing  to  particular  cir- 
cumstances which  take  them  tint  of  the 
rules  of  ordinary  sales.  It  is  tni  this 
ground  that  conlracis  of  sale  or  return 
are  held  valid  ;  and  It  is  uniformly  consid- 
ered that  in  such  contracts  the  properly 
continues  In  the  original  owner;  except  in 


546 


MELDRUM  V.  SNOW. 


caRes  undpr  the  statute  of  James,  of  bank- 
ruptcj-,  wliicli  is  not  in  force  in  this  com- 
monwealth. 

It  is  ohjecterl,  that  in  the  contract  of 
sale  or  retarn.tlie  article  is  to  bereturni^d, 
unless  sold,  but  that  by  the  custom  under 
consideration,  it  may  or  may  not  be  re- 
turned, at  tlie  election  of  the  retailer.  We 
are  not;  clear  that  there  is  any  such  dis- 
tinction; nor  is  there  good  reason  for  it. 
It  is  consistent  with  the  English  law,  that 
the  beer  shall  remain  the  i)roiierty  of  the 
brewer  until  the  election  of  the  retailer 
shall  be  made. 

We  place  this  contract  on  the  same 
ground  as  that  of  sale  or  return  in  Eng- 
land, and  we  are  glad  to  find  authorities 
whichsustain  us;  but  without  authorities 
we  should  deem  it  proper  tu  uphold  such 
a  contract.  Retailers  who  take  beer  to 
sell  are  often  persons  of  very  small  prop- 
erty, and  thecustom  appears  to  be  so  gen- 
eral and  well  known,  that  the  retailer 
would  not  be  supposed  to  be  the  owner  of 


the  beer;  no  injury  therefore  can  arise  to 
creilitors  of  the  retailer.  And  it  being 
beneficial  to  the  couiinunity  to  introduce 
the  use  of  beer,  public  policy  would  justifj- 
us  in  favouring  the  custom. 

Tt  is  asked,  how  shall  the  beer  be  at 
tached;  whether  as  the  property  of  the 
brewer,  or  of  the  retailer.  It  is  not  neces- 
sary for  us  to  answer  this  question. 
There  are  many  cases  where  chattels  can- 
not be  attached  as  the  property  either  of 
the  general  or  of  the  special  owner. 

An  otijection  is  raised  in  regard  to  the 
possession  of  the  plaintiffs  in  replevin, 
the  possession  and  the  right  of  possession 
being  here  in  the  retailer.  It  is  sufficient 
to  remark,  that  when  the  sale  of  beer  is 
stopped  by  the  acts  of  the  retailer,  his 
right  to  retain  ceases;  and  further,  in  the 
c.ise  before  us,  the  general  property  being 
in  the  brewer,  and  the  retailer  having  as- 
signed all  his  right  in  the  beer  to  him,  the 
action  may  well  lie. 

Xew  trial  granted. 


MKWS  0.  CAUIi. 


549 


MEWS  V.  CAKR. 

(1  Hurl.  &  N.  4»4.) 
Exchciiuer.     Nov.  20,  1856. 

The  declaration  stated  that  the  plain- 
tiff put  up  (or  8)iIo  by  public  auction  in 
lots  a  larfjc  (juantity  of  timber  of  a  cer- 
tain descripf  Ion,  &c.,  unilcr  and  subject  to 
the  following  couditiouH  of  Hale.  (Tlie 
declaration  set  out  theconilitions,  of  which 
the  followinK  only  are  mjiterial):  tii-Mt, 
that  the  hitihest  bidder  sliDuld  be  deemed 
the  purchiiser,  &c. ;  fourthly,  that  the 
gooils  should  he  paid  for  and  cleared 
away  within  twcnty-eiKht  days  froir,  the 
day  of  sale;  sixthly,  that  in  default  of 
compliance  with  the  aliove  conditions 
tlie  deposit  money  received  shall  be  forfeit- 
ed, and  the  purchasers  shall  be  liable  for 
all  loss,  charges,  interest  of  money,  or  any 
expenses  whatever  attendant  on  n  re-sale 
either  by  private  contract  or  [lublic  auc- 
tion. Averments:  that  on  the  said  ex- 
posure to  sale  of  the  said  timber  the  de- 
fendant became  the  hichest  bidder  for  ami 
the  |>urchaser  of  (to  wit)  twt)  lots  <jf  the 
same  on  the  conditions  aforesaid,  at  and 
for  a  certain  sum  (to  wit)  of  tls!  (is.,  and 
he  a;:reed  with  tlie  plaintiff  to  become  the 
purchaser  thereof  on  the  said  conditions 
and  at  and  for  the  said  price,  and  to  com- 
ply with  the  said  conditions,  and  the 
plaintiff  accejited  him  as  such  purchaser; 
and  althou;j;h  the  plaintiff  has  at  all 
times  been  ready  and  willint;  to  do  and 
perform  and  has  clime  and  peiformed  all 
thinus  and  all  tiiinRs  have  happened  to 
entitle  him  to  a  performance  by  the  de- 
fendant of  the  said  conditions  of  sale  and 
his  said  agreement,  and  althoH^ih  the  de- 
fendant accordin;;  to  the  said  conditions 
of  sale  and  his  said  atrrecinent  ou^ht  to 
have  iiaid  for  ami  cleared  n  way  the  said 
lots  within  twenty-eljj;lit  days  from  the 
day  of  sale,  yet  the  defemlant  did  not  nor 
would  at  any  time  within  the  said  space 
of  twcnty-ely;ht  <l«ys  from  the  day  of  sale 
pay  for  or  clear  away  the  said  lots  or  any 
part  thereof;  and  thereupon,  in  accord- 
ance with  the  said  conditions  of  sale  and 
after  the  expiration  of  the  said  period  of 
twenty-eight  il.-iys  from  the  day  of  sale, 
and  in  a  reasonable  time  in  that  behalf, 
the  i)iaititiff  did  n'-sell  the  said  lots  by 
public  auction  at  and  for  a  less  sura  thin 
the  amount  so  to  ha  re  been  paid  for  the 
same  by  the  defendant  as  aforesaiil,  to 
wit,  at  a  loss  of  ,fj() ;  and  the  plaintiff  was 
put  to  and  incurred  p;-eat  expense,  to  wit, 
n  further  sum  of  ,tL'(),  for  and  in  respect  of 
divers  charges  and  expenses  attendant  on 
such  re-sale,  &c.:  of  all  which  premises 
the  defe!idant  afterwards  and  before  the 
conimencenient  of  this  suit  hail  notice, 
and  was  then  recpiested  by  the  plaintiff 
to  pay  him  the  said  several  sums;  but  the 
defendant  has  hitherto  wholly  neglected 
and  refused  so  to  do. 

Plea.  Tliat  the  defendant  did  not  be- 
come the  highest  bidder  for  and  the  pur- 
chaser of  the  said  two  lots  on  the  suld 
conditions,  nor  did  he  agree  to  becumi' the 
purchaser  thereof  on  the  said  coiidil  ions  at 
and  for  the  said  price  and  to  comply  with 
the  said  conditions;  nor  dill  the  plaintiff 
necei)t  lilm  as  such  purchaser  as  alleged. 


Ueplicatioa,  taking  Issue  on  the  plea. 
At  the  trial  before  Pollock,  C.  R..  at  the 
last  Surrey  assiies,  It  appeared  that  on 
the  L>(;th  of  ()ctol)er,  18.^1(5,  one  Churcldll  on 
behalf  of  the  plaintiff  put  up  for  sale  by 
auction  several  lots  of  timber  under  tlie 
conilitions  of  sale  mentioned  in  the  decln- 
ration.  All  the  lots  were  not  sold;  anil 
on  the  following  day  the  ilefendnnt  called 
at  theolllee of  Churchill  and  lni|Uired  what 
lots  remained  unsold.  Churchill  thereup- 
on shewed  him  a  catalogue,  and  he  select- 
erl  two  lots,  which  he  agreed  to  purchase, 
(.'hurchlll  then  wrote  the  defendant's  name 
in  the  cntnlogueopposite  these  lots.  Two 
or  three  days  alter  the  defendant  again 
called  and  requested  to  know  what  fur- 
ther lots  remniiicd  on  hand.  The  cata- 
logue was  shewn  to  aim,  and    be  selei-ted 

jtwo  other  lots;  and  on  t)elng  informed 
the  terms  he  said  he  should  consider 
whether  he  would  become  the  purchaser 
of    them.     About    the    itth    .Voveraber   he 

[again  called,  and  on  this  occasion  he 
agreed  to  purchase  these  two  lots. 
Churchill  then  wrote  in  the  derendnnt's 
presence  his  name  in  the  ratnlogue  oppo- 
site these  lots,  and  also  the  agreed  price, 
£10  lOs.  per  standard.  The  defendant 
then  stated  that  as  the  prompt  day  fixi-d 
by  the  conditions  of  sale  at  twenty-eight 
days  after  the  day  of  sale,  viz.,  on  the  •J3il 
Novemlier,  was  so  near,  he  could  not  pay 
for  the  lots  then;  and  it  was  agreed  that 
the  twenty-eight  days  should  lie  caii'ulal- 
ed  from  thedtli  November.  Kvldence  was 
adduced  to  shew  that  by  the  custom  of 
the  trade  persons  who  purchased  lots 
from  those  remaining  unsold  at  an  auc- 
tion were  always  considered  as  bounil  by 
tlie  conditions  of  sale,  the  same  as  if  they 
had  purchased  at  the  auction. 

It  was  objected  on  behalf  of  the  defend- 
ant, tir^t.  that  Cliurchill  was  not  the 
pgent  of  the  defendant  so  as  to  bind  him 
by  his  signature,  and  conseiiuently  that 
there  was  no  contract  in  writing  as  re- 
nulred  by  the  I'tli  section  of  the  statute 
of  frauds;  secondly. that  this,  being  a  sale 
by  private  contract,  was  not  subject  to 
the  conditions  mentioned  in  the  declara- 
tion. The  learned  judgedirected  a  verdict 
for  the  plaintiff,  reserving  leave  to  the  de 
fendant  to  moveto  entera  verdict  for  him. 

Hawkins  in  the   present   term   obtained 

a    rule    nisi    accordingly,  against    which 

.Montagu     Chambers     and     .\lathew    now 

'  sliewed  cause.    Hawkins  appeared  to  sup- 

I  port  the  rule,  hut  was  not  called  upon. 

j  POLLOCK.  C.  B.  The  rule  must  be  ab- 
solute. The  sale  in  questlnn  took  place 
some  days  after  the  auction  was  over: 
and  therefore,  as  regards  the  statute  of 
frauds,  the  ease  must  be  determined  ns 
any  other  ordinary  sale.  The  partlescan- 
not  set  up  a  custom  of  trade  to  repeal  the 
j  statute  of  frauds.  No  doubt  an  niirllon- 
1  eer  at  the  sale  Is  agent  for  both  seller  and 
'  buyer,  so  as  to  bind  them  liy  his  slgiin- 
■  tnre:  but  the  moment  the  sale  Is  over,  the 
'same  principle  does  not  ap|ily,  and  the 
I  auctioneer  Is  no  longer  the  agent  of  both 
parties,  but  of  the  seller  only;  and  the 
'  signatuie  of  the  seller  or  his  agent  cnn- 
j  not    Idnd    the   buyer.      The   nucstion    Is, 


550 


MEWS  0.  CARK. 


whether  there  is  any  evidence  to  take  the 
ease  out  of  the  statute  of  frauds;  and  I 
think  that  there  is  none. 


ALDERSON.B. 
ion. 


I  am  of  the  same  opin- 


BRAMWELL,  B.  The  only  reason  why 
I  make  any  remark  is,  that  the  observa- 
tions of  the  court  in  Graham  v.  Musson' 
may  not  be  misunderstood.  Tliere  the 
court  said  that,  if  the  traveler  had  signed 


'5  Bias.  N.  C.  603. 


the  defeudant's  name,  and  he  had  not  ex- 
pressed any  dissent,  tliat  would  linve 
been  a  recognition  of  aaoncy.  Here  the 
auctioneer  eigned  the  defendant's  name, 
not  purporting  to  act  for  him,  but  as  the 
person  who  sold  the  goods.  It  is  now 
established  that  an  auctioneer  at  the  time 
of  the  sale  is  agent  for  both  buyer  and 
seller;  but  as  soon  as  the  sale  is  over  the 
reason  for  the  rule  fails, and  he  iscertninly 
not  the  agent  of  the  buyer  unless  he  has 
some  authority  to  act  on  his  part. 

WATSON,  I?., concurred.    Rule  at)8olute. 


J 


I 


MITCH EI>L  V.  GILK. 


.153 


MITCHELL  V.  GILE. 

(13  N.  H.  390.1 

Superior  Court  of  Judicature  of  New  Hiimpshire. 
Hillsborough.     Dec.  Term,  1S41. 

.\HHUinpsit  by  one  Mitchell  aRniimt  one 
(iile,  one  of  the  cliuiKi'S  licinju;  for  ti'ii  cordH 
of  wood  Hold  anil  delivfrud.  It  npinured 
nil  the  triiil  that  pluintiff  had  on  his  land 
a  lot  of  seHHoned  wood,  of  which  dtfend- 
ant  wished  to  lioirow  a  |jorlion  in  order 
to  complete  a  boat  load.  Plaintiff  nave 
him  pi-rmiHHlon  to  lake  what  he  wanted 
for  the  |iiir()Oi<i',  and.  UH  defendant  pro- 
posed to  cut  Home  wood  from  his  land 
near  iJhiinllffH,  it  wan  a^jreed  thiil  the  lat- 
ter Klionld  have  of  it  as  nmcli  aH  defend- 
ant lai^lit  take  of  plaiiililf's  wood.  De- 
fendant accorrliny;ly  look  ten  cords  of 
plainliff'H  wood,  and  plaintiff  afterwards 
demanded  a  like  <|uantity  of  ilefendant, 
which,  however,  the  latter  neglected  to 
deliver.  Defendant  objected  that  this  evi- 
dence did  not  Hiippi.rt  the  declHratiun, 
and  that  plaint ii(  niionld  have  declared 
on  the  original  contract. 

15owiuan  &  Porter,  for  i)laintiff.  S.  D. 
Bell,  for  defendant. 

tJILCHRIST,  .1.  There  is  aclaHsofcases 
where  it  i.s  unnecfssar.v  to  declare  upon 
the  Hpecial  contract  which  the  parties  may 
have  made.  Where  on.^  party  ajji-oes  to 
do  a  certain  thing,  and  tlie  other  party 
agrees  to  pa.v  a  sum  of  money,  and  the 
thing  or  duty  is  nerfoniied,  but  the  other 
party  refuses  to  pay  the  nione.v,  an  action 
lies  for  the  money,  because  a  debt  has  ac- 
crued, and  nothing  remains  to  beilonebut 
to  pay  it.  There  seeing  to  be  no  reason  in 
such  a  case  why  a  general  count  should  not 
be  sulhcient  for  the  recovery  of  the  money 
due.  The  plaintiff's  claim  does  not  then 
Bound  in  ilaniages,  but  is  for  a  ilelinlte 
sum.  .Such  is  )  he  principle  recognized  in 
the  Bank  of  Colunibia  vs.  Patterson's 
Adm'r,  7  Crancli  :!0:!;  Williams  vs.  .Sher- 
man, 7  Wend.  lOil;  .Jewell  vs.  Schroeppel, 
4  Cowen.'>(i4;  Felton  vs.  DickiuHoii,  10. Mass. 
287;  Sheldon  vs.  Cos.  3  B.  &  V.  -120,  and  in 
the  cases  geiierully,  whenever  the  point  is 
adverted  to. 

There  is  another  class  of  cases,  where 
the  only  remedy  for  the  plaintiff  is  l)y  an 
action  on  the  spi'cial  iigreemenl.  because 
It  still  remains  open  and  nnresciiided.  In 
geneial,  where  goods  are  solil  to  be  paid 
for  wholly  or  in  pai'l  b.v  other  goods,  or 
by  the  defendant's  labor,  or  othei-wise 
than  in  money,  the  a<-lion  must  be  on  the 
,agreemeiit,  and  for  ii  breach  of  it,  and  not 
for  goods  sold  and  delivered.  And  this  is 
especially  the  case  unless  there  be  a  suiii 
of  money  due  the  pluintiff  on  the  contract, 
and  that  part  of  it  which  is  forsoniething 
else  thiin  money  has  been  performed  liy  the 
defendant,  so  that  there  is  nothing  to  be 
done  which  can  be  the  sul)ject  of  future 
litigation.  In  such  case  pcrh.ips  theplain- 
tiff  mav  declare  that  the  defendant  was 
indebteil  to  him  in  a  sum  of  mone.v  for 
goods  sold  and  delivereil  to  him  in  ex- 
change. But  in  a  caHC  tried  before  Mr. 
.luslice  Buller,  where  the  deelfiratioii  was 
for  goods  sidd  and  delivered,  anil  the  con- 


tract proved  was,  that  the  goodn  should 
be  paid  for  partly  In  money  and  partly  In 
buttons,  the  plaintiff  was  nonsuited,  for 
not  declaiiiig  on  the  s|  eclal  agreement. 
Harris  vs.  Fowle.cited  In  the  caseof  Barbe 
VH.  Porker,  1  II.  Bl.  •.N7.  There  is  also 
an  old  case  on  this  point  In  Palmer's  He- 
ports  .304,  Brigs'  Case,  where  one  in  pos- 
session of  land  rsroiiilHeil  to  make  a  lease 
of  it,  and  took  a  line  for  the  lease,  after 
which,  and  before  the  lease  was  made,  lie 
was  evicted  from  the  land.  It  was  held 
that  debt  dhl  not  lie  to  recover  the  money 
paid  for  the  line;  and  the  (irlnciple  of  the 
decision  seems  to  have  bi'cn,  that  the  con- 
tract to  niaki'  the  lease  being  still  sub- 
Bisting,  the  plaintiff  should  have  sued  up- 
on that  contract.  And  tlieaiithorities  are 
nearly  uniform,  thai  where  goods  are  de- 
livered on  a  special  agreement,  a  mere  fail- 
ure to  perform,  iiy  the  defenilant,  does 
not  rescind  tne  agreement  ;  but  it  is  still 
executory  and  subsisting,  and  the  ri-iin  dy 
is  by  an  action  upon  It.  Baymoiid  vs. 
Beurnanl.  12  .Jolins.  '.74;  .leiinin::s  vs. 
Camp,  l:!  Johns,  '.if;  Clark  vs.  Smith.  14 
.Tohiis.  :!2C,;  Bobertson  vs.  Lynch,  Is.Johns. 
451;  Dubois  vs.  Del.  &  Hudson  Canal  Co., 
4  Wend.  2S!);  Tiilver  vs.  West,  Holt  17S. 
And  in  Weston  vs.  Downes.I  Dougl.23,lhe 
court  exiiressly  held,  that  if  a  contract  lie 
rescinded,  an  action  for  money  had  and 
received  will  lie  for  mone.v  paid  under  it; 
l)ut  if  the  contract  be  broken,  this  action 
will  not  lie,  but  an  action  for  a  breach  of 
the  contract  must  be  brought.  This  prin- 
ciple is  fully  rec<>gnized  in  Towers  vs.  Bar- 
rett, 1  T.  B.  13:!,  and  In  Davis  vs.  Street. 
1  C.  &  P.  18.  Opposed  to  the  general  cur- 
rent both  of  the  ICnglish  and  American  au- 
thorities on  this  point,  are  I  heintimations 
and  the  reasoning  of  Mr.  Justice  Coweii, 
in  the  case  of  Clark  vs.  Kairlield,  22  Wend. 
.522.  Heexpresses theopinion  that  IhecascH 
will  justify  the  position,  that  lliough  the 
compensation  for  the  goods,  or  other 
thing  advanced,  is  to  be  rendered  in  serv- 
ices, or  someotherBpecinc  thing, if  the  par- 
ty promising  to  render  be  in  default,  indeb- 
itatus assumpsit  will  lie  for  the  price  of 
the  tiling  advanced.  lie  admits  that  this 
|;ositii>n  goes  beyond  aiiv  direct  adjiidii-a- 
tiori  ill  Knglanil,  although  he  thinks  it 
may  be  maintained  by  the  principle  of 
many  cases  there,  and  that  it  is  just  that 
in  si'icli  a  case  a  general  count  sluiiild  be 
maintained.  He  cites,  with  approbation, 
the  case  of  Way  vs.  Wakefield,  7  Vermont 
K.  22;'.  22S,  where  Mr.  .Iiistice  Collamer 
says,  tliat  "  whenever  there  an-  goods  sold, 
work  done,  or  monev  passed,  whatever 
stipulations  may  have  been  made  about 
the  price,  or  mode,  or  time  of  payment.  If 
the  terms  have  transpired  so  that  money 
has  become  due,  the  general  count  may 
be  maintained."  Tlie  action  was  for  Iinr- 
iiess  sold.  III  be  paid  for  in  lumber  at  a 
specHied  time.  There  lieliig  a  default  In 
pavmeiit,  the  court  allowed  the  general 
count  for  harness  sold.  Mr.  Justice  Cow- 
en  admits  that  "the  learned  jiidi:e  certain- 
ly did  not  cite  any  .llrect  anihoiity  for 
thus  applylii;;  the  rule,"  and  we  are  not 
aware  that  any  authority  exists  for  such 
an  application  of  it.  Tollie  rule.asabove 
stated,  there  may,  perliaps,  be  no  obj"c. 
tlou.     The  niiesiion  in  cases  of  such  a  char- 


554 


MITCJIKLL  0.  GILE. 


acter  always  is,  whether  the  money  lias 
become  (hie;  aiiO  if  no  more  l)e  meant  thnn 
tliat  a  jj;enerul  count  will  lie,  where  a  con- 
tract has  been  performed,  and  has  resulted 
in  an  oblination  to  pay  money,  then  we 
assent  to  the  correctness  of  the  position. 
Of  the  propriety  of  the  a|)plication  of  the 
rule  to  the  facts  in  the  case  of  Way  vs. 
Wakefield,  we  may  be  permitted,  reKi)ect- 
fully,  to  express  a  doubt.  It  is  true  that  a 
Reneral  count  may  sometimes  be  main- 
tained, where  the  goods  were  to  be  paid 
for  by  other  Koods.  Of  this  character  is 
the  case  of  Forsyth  vs.  .lervis,  1  StarUie's 
Reports  437.  The  plaintiff  sold  thedefenil- 
ant  a  fijun  for  forty-five  guineas,  and 
af?reed  to  take  of  the  defendant  a  ^un,  in 
part  payment,  at  the  i)rice  of  tliirty  guin- 
eas. Lord  Ellenborough  held  that  as  here 
wa-i  a  sale  of  uoods,  to  be  paid  for  in  part 
by  other  goodsat  a  stipulated  price,  ui)on 
the  refusal  of  the  purchaser  to  jiay  for 
them  in  that  mode,  a  contract  resulted  to 
pay  for  them  in  mi)ney,  and  that  the  for- 
ty-five guineas  might  be  recovered  under 
a  count  for  goods  sold.  This  case  has 
every  characteristic  of  a  sale.  The  plain- 
tiff sold  the  gun  for  a  specified  price;  the 
defendant  agreed  to  give,  in  (lart  payment, 
another  gun  for  a  stipulated  price,  and 
was  bound  either  to  deliver  the  gun  or 
pay  its  price.  As  he  refused  to  deliver  the 
gun, a  decision  that  ho  wasindebted  tothe 
plaintiff  for  its  price  accords  with  the  gen- 
eral tone  of  the  authorities.  In  relation 
to  the  case  of  Clark  vs.  Fairchild.it  is  also 
to  be  remarked,  that  in  the  sulisequent 
case  of  Ladue  vs.  Seymour,  24  Wend.  02, 
Mr.  .Justice  Bronson  says,  that  where 
there  is  a  subsisting  special  contract  Ije- 
tween  the  parties  in  relation  to  the  thing 
done,  all  the  casts  agree  that  the  contract 
must  control,  and  that  the  remedy  is,  in 
general,  upon  that,  and  not  uponthecom- 
nion  counts  in  assumpsit. 

But  apart  from  authoiity,  and  from 
technical  reasoning  depending  upon  au- 
thority for  much  of  its  force,  it  is  proper 
that  the  form  of  the  remedy  should  be 
adapted  to  the  actual  state  of  facts.  In 
no  other  mode  of  declaring  can  the  proper 
rule  of  damages  he  applied,  where  there 
has  been  a  breach  of  a  special  contract.  If 
goods  are  sold  and  delivered,  the  price, 
or  value,  at  the  time  of  the  transaction,  is 
the  measure  of  damages,  unless  there  be 
something  showing  a  different  intention 
by  the  parties.  The  plaintiff  is  entitled  to 
the  value  of  the  goods  he  has  parted  with, 
at  the  time,  and  to  nothingmore;  norcan 
the  defendant  be  compelled  to  pay  more 
than  the  value  at  the  time  he  ri>ceived 
them.  Both  parties  act  with  reference  to 
the  value  at  the  time  of  the  transaction. 
But  where  a  party  agrees,  but  neglects  to 
deliver  goods  at  a  specified  time,  the  dam- 
ages for  the  non-fulfilment  of  such  an 
agreement  are  to  be  calculated  according 
to  their  value  at  the  time  they  should  ha  ve 
been  delivered.  If  the  articles  have  fallen 
in  price,  the  defendant  will  be  entitled  to 
the  benefit  of  such  a  changeinthe  market; 
if  they  had  risen,  the  increase  in  value 
will  belong  to  the  [jlaintiff.  There  is, 
therefore,  a   substantial   reason    why    tlie 


rights  of  both   parties  can   be  better  se- 
cured, by  declaring  specially  upon  a  breach 
for  the  non-fulfilment   of  a  contract  to  de- 
liver goods,  than    by  declaring   upon   the 
general  count;  and    this  reason  probably 
has   had   its   effect  in  causing  the  forms  of 
the  remedy  to  be  kept  distinct.     Leigh  vs. 
I  Paterson,    S    'i'aunt.    540;    (Jainsford    vs. 
[Carroll,  2   B.   &   C.   (i21;  Shaw  vs.  Nudd,  8 
I  Pick.  9. 

j     If,  where  goods  are  sold  to  be  paid  for 
otherwise  than   in  money,  and  the  vendee 
'  neglects  to   perform,  an    action    must   be 
!  brought  on  the  si)eeial  agreement,  there  is 
j  a  still  stronger   reason   for   adopting   the 
i  same  form  of  the  remedy  where  the  goods 
are  not  sold,  but  exchanged.     In   the  for- 
mer case,  tlie  goods  are  at  least  sohl ;  and 
I  so  far  the  evidence   supports   the   declara- 
[  tion.     But  the  latter  case  has  no  feature  in 
[common    with   a   contract,   necessary    to 
support  a  count   for  goods  sold  and  deliv- 
ered.    Now  thetransaction  between  those 
parties  was,  properly  speaking,  an    agree- 
ment for   an   exchange  of  goods,  and  not 
for  a  sale.     Blackstone  says,  2  Coinm.  446, 
"if    it    be    a    commutation    of  goods  for 
goods,  it  Is  more  properly  an  exchange;  if 
it  be  a  transftrring  of  goods  for  money,  it 
is    called    a    sale."'     Here    the    defendant 
agreed    to  deliver  to   the  plaintiff  as  much 
wood  as  he  received  of   liiui.     This   agrje- 
ment    the    defendant    failed    to    perform. 
There   is,    then,   a    breach    of    the  ■special 
agreement,  and  there  isnotliingelse.     The 
injury   sustained   by  the   plaintiff  is  to  be 
compensated   by  a    recovery    of   damages 
for   the   breach.     There  is   nothing  in  the 
case  that  sliows  a  9ale   of  the  wood  by  ei- 
ther party  to  the  other;  norcan  thetrans- 
action be  considered  a  sale,  without  a  dis- 
regard of  all  the   authorities  wliich  distiii- 
j  guish    actions   sounding  in  damages  for  a 
I  breach  of  contracts,  from  actions  to  recov- 
er a   definite  sum    as  the  purchase  money 
for  goods  sold. 

;  Nor  is  the  case  altered  by  the  fact  that 
I  no  suit  could  be  maintained  without  a  de- 
imand.  The  wood  was  to  be  delivered  to 
:  the  plaintiff  at  such  time  as  he  should  de- 
!  sire  it.  The  plaintiff  would  have  a  I'ight 
j  to  the  performance  of  the  agreement  when- 
1  ever  he  should  notify  the  defendant  that 
[he  desired  the  wood.  There  could  be  no 
!  breach  of  the  agreement  by  the  defendant 
until  after  this  notice;  and  a  refusal  to 
deliver  was  a  breach,  for  which  an  action 
lis  maintainalile.  That  a  demand,  in  a 
given  case,  is  necessary  beftjre  a  suit  can 
;  be  niaintained  on  a  special  contract,  by 
no  means  proves  that  the  demarid  alters 
I  the  form  of  the  remedy  to  which  theplain- 
tiff  is  entitled.  It  might  as  well  l)e  said, 
that  because  an  action  on  a  st)ecial  con- 
tract could  not  beiuaintained  untilagiven 
period  had  elapsed,  therefore  the  lapse  of 
time  altered  the  form  of  the  remedy.  Un- 
doubtedly, a  demand  and  refusal  may,  in 
some  cases,  have  this  effect,  hut  tjie  result 
does  not  necessarily  follow  because  the 
demand  must  be  made. 

The   opinion    of   the  court  is,  that   the 
plain tifi  has  misconceived  his  remedy,  and 
that  this  action  cannot  be  maintained. 
Plaintiff  nonsuit. 


MOOOY  V.  BROWN. 


MOODY  V.  BROWN. 

(34  Me.  lOT.) 

Supreme  Judicial  Court  of  Maine.      1S52. 

On  uxcoptions  from  the  iliHtrict  court; 
llatliaw;  ,v,  J. 

/^Hsiiin|iHit.  on  account  for  inateriiilH 
and  lalxir  furnlHJied,  anil  ono  on  an  ac- 
count forartick'K  Hold  and  delivered.  The 
accdunt  waH  tor  Hlereotype  platcH.  $1K; 
alteration  of  Haine,  $4;  and  some  inlercMt 
and  exprcKHaKe,  making  in  .-ill  $L'r>.((4. 

A  wItnesH  lor  the  plaintiff  tcKtilied  that 
in  l]elialf  of  the  plaintiff  he  prenented  the 
hill  and  reqaeHted  payment,  to  which  the 
defendant  re|)licd  that  he  had  ordered  tlie 
plateH,  bnt  did  not  feel  ul)le  to  tal<e  them  ; 
that  then"  waH  a  mistake  in  them,  which 
the  plaintiff  waw  to  correct  at  his  own  ex- 
peiirte;  that  ho  afterwards  carried  the 
plates  to  tlie  store  of  the  defendant,  who 
refused  to  take  tlieni ;  that  he  left  them 
there,  <iKainst  the  remonstrance  of  the  de- 
fendant; that  the  defendant  afterwards 
offered  to  pay  $20  for  the  wiude  liiU;  that 
at  a  still  subsequent  period,  the  witness 
asked  the  defendant  wlien  lie  woidd  pay 
the  ?-M,  who  replied  that  he  would  do  it 
In  a  few  flays;  and  that  the  defendant 
nfterwarils  repeatedly  said  ho  would  pay 
the  twenty  dollars. 

The  jndKe  instructed  the  jury,  that,  if 
defendant  contracted  for  the  plates  to  be 
made  for  liiin,  and  refused  to  accei)t  them 
when  made,  althouKli  he  in ifiht  be  liable 
to  plaintiff  in  an  action  for  dnmaKes  for 
not  fiilfillin;;  liis  contract,  yet  he  would 
not  be  liatile  in  this  action  for  their  value, 
as  for  jioods  sold  and  delivered;  that  if 
they  were  left  ;it  defendant's  storenKiiinst 
his  consent  and  remonstrance,  such  a  i)ro- 
ceeiliriK  on  the  part  of  plaintiff  could  have 
no  effect  to  varv  the  liabilities  of  defend- 
ant. 

I!ut  if  afterwards  defendant  offered  to 
pay  the  twenty  dollars  in  full  for  the  liill, 
and  if  that  offer  was  accepted,  tlie  |)lain. 
tiff  would  be  entitled  to  recover  the  twen- 
ty ilollars  and  Interest  thereon  from  the 
lime  such  offer  was  accepted,  but  that  de- 
feiulant  would  not  1)0  bound  liy  that  offer, 
unless  it  was  ncce|>ted. 

liefore  SIIEPLKY,  r,  J.,  and  WKLLS, 
RUE,  and  APPLETON,  J.I. 

J.  E,  CJodfrey,  for  plaintiff.  Simpson, 
for  the  defendant, 

SIIEPLEY,  C,  .1,  There  is  not  a  perfect 
agreement  of  the  decided  cases  upon  the 
question  iiresonted  l)y  the  exceptions. 

The  \i\\\  apiiears  to  bo  entirely  settled 
in  lOnsland  in  accordance  with  the  instruc- 
tions.    Atkinson    v.  ISell,   8   R.   &   C.    277; 


Elliott  V.  PybuH.  10  Uinu  ,'il2;  Clarke  v. 
Spence,  4  Ad.  &  El.  44s. 

Thecasc  of  IJement  v.  Smith,  15  Wend. 
40:t,  decides  the  law  to  be  otherwise  in  the 
stale  of  New  York.  The  case  of  Towers 
V.  Osborne,  iStra.  ."iiHi,  was  reliTreil  to  as 
an  authority  for  It.  The  plaintiff  In  that 
case  does  ajjpenr  t<i  have  recovered  for 
the  value  of  a  chariot,  which  the  <le- 
fendant  had  rcfuHi'd  to  take.  No  question 
appears  to  have  been  made  reHpectlni;  his 
rinht  to  do  so,  if  he  was  entitled  to  main, 
tain  an  action.  The  only  qiieHtion  decided 
was,  whether  the  case  was  within  the 
statute  ol  frauds. 

In  the  case  of  Dement  v.  Smith,  C.  J. 
Sava.":e  appears  to  have  cunsidered  tho 
plaintiff  entitled  upon  iiriiiciple  to  recover 
for  the  value  uf  an  article  manufactured 
according  to  order  anil  tendered  to  a  cqb- 
tonier  refusinjy;  to  receive  it. 

This  can  only  be  correct  upon  the 
Krouiid  that  by  a  tender  the  property 
passes  from  the  manufacturer  to  the  cus- 
tomer against  his  will.  This  Is  not  tlie  or- 
dinary effect  of  a  teniler.  It  the  property 
does  not  pass,  and  the  manufacturer  muj' 
commence  an  action  and  recover  for  itH 
value,  while  hi.s  action  is  pendinu  it  niuy 
be  seized  and  sold  Ijy  one  of  his  creilltors. 
and  his  lejral  riRlits  be  thereliy  varied,  or 
he  may  receive  benellt  of  its  value  twice, 
while  the  customer  loses  the  value.  Tlie 
correct  principle  appears  to  have  lieen 
stated  by  Tindal,  t'.  .1.,  in  the  case  of 
Elliott  V.  Pybiis,  that  the  mniiufucturer'H 
rlKht  to  recover  for  the  value  ilepends 
upon  the  <piestion,  whether  the  property 
has  passed  from  him  to  the  customer. 
The  value  should  not  be  recovered  of  the 
customer,  unless  he  has  become  the  owner 
of  the  property,  and  can  protect  it  aftainst 
any  assignee  or  creditor  of  the  manu- 
facturer. 

To  effect  a  change  in  the  property  there 
must  he  an  assent  of  both  parties.  It  Ib 
admitted  that  the  mere  order  given  for 
the  manuiacture  of  the  article  does  not 
affect  the  title.  It  will  continue  to  lie  the 
property  of  the  manufacturer  until  com- 
pleted and  tendered.  There  is  no  axsent 
of  the  iitlier  party  to  a  chaiiRc  of  the  title 
exhibited  by  a  tender  and  refusal.  There 
must  be  proof  of  an  acceptance  or  of  actH 
or  worils  respectinn  It,  from  which  an  ac- 
ceptance may  be  inferred,  to  pass  tlie 
property. 

This  a|>pearR  to  be  the  result  of  the  best- 
considered  cases. 

There  is  a  particular  class  of  rases  to 
Avhich  this  rule  does  not  apply,  where  the 
customer  employs  a  snpeiintendent  and 
pays  for  the  property  manufactured  by 
installments  us  the  work  is  performed. 

Exceptions  <iverruled. 


I 


MOOIJK  V.  McKINLAV. 


559 


MOORE  V.  McKINLAY  r'l  al. 

(5  Cal.  471.) 

Supreme  Court  of  California.    Oct.  Term,  1855. 

Appeal  from  the  diHtrict  court  of  the 
twelfth  judicial  diHtrict,  San  FranciHco 
county. 

Houce  &  Wilson,  and  Cook  &  OldH,  for  I 
appellanto.  CharleH  H.  S.  W'illinrnH,  for 
rcHpondent. 

.MU!tl{j\  Y,  ('.  J.  'i'his  wnH  an  action  in 
the  court  lielow,  to  recover  the  amount 
paid  hy  the  plaintiff  to  the  defcnilanlH  lor 
the  purchase  of  an  invoice  of  (garden 
BecdH. 

It  iH  in  evidence,  that  after  the  arrival 
of  the  vcHsel,  the  plaintiffn  were  retiucKted 
to  open  and  inspect  the  Mceds,  hut  declined 
to  do  so,  and  paiil  for  them.  'J'hey  were 
afterwards  tested,  and  (ound  to  he  almost 
wholly  worthless.  In  order  t<j  maintain 
this  action,  the  pluintifls  must  thowelther 
an  express  or  Implied  warranty.  The  sale 
note  is  as  follows:  "  \V(^  have  this  day 
sold  you  two  shipments  of  seeds  tor  ar- 
rival," &c. 

The  plaintiff  maintains,  that  the  word 
"seeds"  thus  used,  amounts  to  an  express 
warranty:  that  it  has  an  express  sisnlti- 
cation,  importing  an  article  which  will 
Kerminate  or  y;row,  and  that  it  would  he 
error  to  apply  this  term  to  any  seeds  not 
ponsessiiiK  these  properties.  And  secon<I, 
tiiat  if  not  an  express  warraitty,  the  law 
will  imply  a  warranty;  or,  in  other  words, 
riiise  the  presumption,  that  the  article 
sold  is  mcrchantahlo,  and  tit  for  the  use 
for  wliich  it  was  sold. 

At  common  law,  the  rule  caveat  emptor 
applied  to  all  sales  of  personal  property, 
except  where  the  vendor  H'lve  a;i  express 
warranty,  which  is  said  to  he  such  recom- 
mendations or  allirmations,  at  the  time 
of  the  sale,  as  are  supposed  to  have  in- 
duced the  purchase.  To  constitute  a  war- 
ranty, no  precise  words  are  necessary;  it 
will  1)0  sullicient  if  the  intention  clearly 
appear. 

DuriuK  the  time  of  Lord  Holt,  the  dec- 
trine  was  estahlished,  tliat  to  warrant,  no 
formal  words  were  necessary,  and  there- 
fore a  warranty  mi;;ht  he  imiilied,  from 
the  nature  and  circumstfinccs  of  the  case, 
and  the  maxim  was  thus  introduced, 
that  a  sound  iirice  Imports  a  sound  bar- 
gain or  warranty. 

This  doctritie  was  afterward  exploded 
by  Lord  iMaiislield, since  which  time  It  has 
undi-rj^ono  some  modilications  in  the  Kng- 


lish  and  American  courts,  tendiiiK  In  the 
former  somewhat  and  In  some  of  tlie 
states  (if  the  I'nion,  to  the  rule  of  civil 
law,  widch  implies  that  the  i;oodH  sold 
are  morchuntalde,  and  lit  for  tlie  purpoHe 
for  wlncii  they  were  bou^lit. 

The  lietter  opinion,  however,  I  lhlnl<,  an 
deduced  from  ICn^lish  and  .\miTican  de- 
cioions,  is  that  a  warranty  will  not  he  Im- 
idicd,  except  in  cases  where  ^oods  ore  Hold 
at  sea,  whei-e  the  party  has  no  i.pportuni- 
ty  to  examine  them,  or  in  case  of  a  sale  by 
sausple,  <jr  of   [irovisions  for  domestic  use. 

In  Hart  v.  Wri^'ht,  17  Wend.,  -yiT.  ./udRe 
("owen  reviews  the  former  deciKinnH  of 
that  state  as  well  as  the  ICuKlish  cnscB, 
and  urri.cs  at  the  concluHJon  which  1 
hav(?  staled.  This  case  was  afterwards 
hrouKht  before  the  court  of  errors  ol  New 
York,  and  the  doctrine  approved. 

Jn  .Sloses  v.  Mea<l,  1  Di'iiio,  .■('<.">,  tlie  ques- 
tion a^ain  came  before  the  suiireme  c<»urt 
of  New  York.  In  commentinjj;  on  the  de- 
cisions on  this  subject,  .ludKC  Bronson 
says,  "iSome  EiiKlish  jndnes  liave  lately 
shown  a  stronj;  tendency  towards  the 
doctrines  of  thecivil  law,  in  relation  tc» 
sales,  and  have  been  disposed  to  imiily 
warrantys  wliere  none  exist.  *  •  *  I 
do  not  regret  to  find,  tliat  there  are  men 
in  Great  Itritain  who  can  look  beyond 
the  shoresof  that  island  ;  l)ut  I  feel  no  dis- 
position to  f(dlow  them  in  their  new  zeni 
for  tile  civil  law,  for  the  reason,  that  it  is 
not  our  law  in  relation  to  sales  In  the 
best." 

The  same  doctrine  Is  maintained  in 
Fraley  v.  Bispham,  10  Barr.,  :1lMI,  and 
many  other  .\merican  decisions.  There 
liave  been  no  departures  from  this  rule  in 
the  decisions  of  this  court.  In  the  case  of 
Flint  V.  Lyon,  4  Cal.,  17.  tlie  Hour  was 
described  as  "Hnxall,"  and  we  held,  that 
tins  amounted  to  a  warranty,  that  tlie 
article  sold  was  "  llaxall,"  and  not  a  dif- 
ferent brand  or  quality  <>(  Hour.  In  Kuiz 
et  al.  V.  Norton,  4  Cal.,  :!.'>'.),  the  sale  note 
described  the  rice  as  "sound  rice."  which 
it  was  held  amounted  to  a  warranty. 

Testinj?  the  present  case  by  the  rule 
wliich  we  have  deduced  from  the  better 
authority  of  courts,  the  pbilntltf  cannot 
recover.  "  The  laiiKiiay:e  useil  In  the  sale 
note  cannot  be  tortured  Into  a  warranty, 
and  the  fact  that  the  plaintiff  had  an  op- 
portiiiiity  and  declined  to  Inspect  the 
seeds  before  acceptiuK  them,  takes  the 
case  from  the  operation  of  the  rule  of  Im- 
plied warranty. 

Judgment  reversed,  with  costs. 

UEYDKNFELDT,  J.,  concurred. 


MOIWE  V.  SIIAW. 


561 


MORSE  et  al.  v.  SHAW. 

(134  Mass.  59.) 

Supreme  Judicial  Court  of  Massachusetts. 
Hampden.     Feb.  S,  ISiS. 

Replevin  of  wool.  At  the  trijil  in  the  Rii- 
perlor  court,  hofore  Kockwell,  J.,  the  jury 
returned  ii  verdict  for  tlie  pluiiitiffH;  und 
the  defendant  ulleKed  e.xcepiiouH. 

G.  M.  Stenrns  nnc)  N.  A.  Leonard,  for 
plaintiffH.    G.  F.  Hoar,  for  defendant. 

MORTON,  J.  The  plaintiffs  seek  to  a  void 
a  Hale,  upon  the  ground  that  the.v  weie 
induced  to  make  it  hy  false  and  fraudulent 
representations  o(  the  defendant.  The 
burilen  is  upon  them  to  show  that  the  de- 
fendant knowingly  made  false  representa- 
tions of  matters  of  fact  whirh  are  suscep- 
tihleof  knowledge.  Rei)rosentation8  which 
are  mere  expressions  of  opinion,  judgnient 
or  estimate,  or  intended  as  e.xpressioHH  of 
helief  only,  are  not  sufficient  to  support 
the  action.  They  must  be  statements  of 
facts  suscei)til)le  of  knowledf;e,  as  distin- 
guished from  matters  of  mere  belief  or 
opinion.  Safford  v.  Grout.  120  Ma.ss.  20. 
Litchfield  v.  Hutchinson,  117  Mass.  1!).'>. 

At  the  trial  of  this  case,  the  presiding 
justice  st:i ted  tliese  principles  of  law  with 
substantial  correctness,  and  thedefendant 
d<ieH  not  coni|)lain  of  the  rulings  in  this 
respect.  I'.iit  he  contends  that  the  onl.v 
representations  proved  in  the  case  were 
expressions  of  o|iinion  or  belief  as  to  the 
defendant's  ability  to  pay  his  <lcbts,  and 
that,  therefore,  under  rules  of  law  adopt- 
ed by  the  presiding  judge,  he  should  have 
instructed  the  jury,  as  requested,  that  the 
evidence  would  not  warrant  a  verdict  for 
the  plaintiffs. 

The  evid.nce  tended  to  show  that,  in 
January,  isTG,  the  defendant  went  to  the 
plaintiffs  to  buy  wool,  and.  after  some 
conversation  as  to  his  business  condition 
and  credit,  agreed  to  go  home  and  pre- 
pare a  st.'itement  of  his  aff.-iiis;  that,  in 
the  February  following,  he  again  called 
upon  the  plaintiffs,  took  out  n  niemoran- 
LAW  SALES — 36 


duin  book,  apparently  rend  It,  and  said: 
"I  want  to  tell  ycHi  how  I  stand.  I  could 
pay  every  dollar  of  iiideliteilneHS  of  mine, 
including  the  mortgages  on  my  real  es- 
tate, and  not  owe  on  that  real  estate 
more  than  $1."),000  to  *20,()(H>. "  It  up- 
I)enred  that  he  had  a  large  and  valuable 
real  estate.  The  statement  is  ei|uivalent 
to  a  ret)iesentation  that  he  huil,  imlepend- 
entiy  of  his  real  estate,  property  enough 
to  pay  all  his  debts  except  $20,000. 

Such  a  representation  may  he  suscepti- 
lile  of  either  of  two  interpretations.  It 
may  hfl  intended  as  a  wilfidly  false  state- 
ment of  a  fact,  and  may  be  understood  us 
a  statement  of  a  fact.  Or  it  may  lie  In- 
tendeil  as  the  expression  of  the  opinion  or 
estimnfcH  whicli  the  owner  has  of  the 
value  of  Ills  property,  ann  may  Ijc  ho  un- 
derstood. .Suppose,  lor  instance,  that  a 
man  who  owns  iiroperty  worth  ?bHio,  for 
the  purpose  of  procuring  credit,  re|)resentB 
that  he  is  worth  or  that  he  has  property 
worth  $100,000.  It  would  be  sell-evident 
that  lie  intended  to  misrei)resent  facts, 
and  such  misreprfsentatinn  would  be  a 
frauil.  I'.ut,  if  the  same  man  shoulil  repre- 
sent that  III'  had  property  worth  $1."jOO,  It 
might  well  be  regarded  as  an  expression 
of  his  judgment  or  estimate  of  value,  and 
therefore  not  an  acfionablefraod.  In  such 
cases,  it  is  for  the  jury  to  determine  wheth- 
er the  representations  were  intended  and 
understooil  as  statements  <if  tacts,  or 
mere  ex|>ressions  of  opinion  or  juilgment 
In  the  case  at  bar,  the  court  could  not 
.say,  as  matter  of  law,  that  tliestatements 
made  l)y  the  defendant  as  to  his  iiroperty 
and  del)ts  were  mere  expressions  of  his 
opinion  or  lielief,  and  not  statements  of 
facts.  All  tiie  evidence  was  before  the  ju- 
ry, disclosing  the  circumstances  and  con- 
dition of  tlie  ilefendant  and  his  property, 
and  it  was  properly  left  to  them  to  deciile 
wliether  the  statemenls  proved  were  false 
and  frjiudulent  representatiousof  material 
facts. 

Exceptions  overruled. 

I      ENDICOTT  and  LORD.  JJ..  olisent. 


I 


MOUSE  0.  SIIEUMAN. 


5C3 


MORSE  et  al.  v.  SHERMAN. 

(106  Mass.  430.) 

Supromo  Judicial  Court  of  Massachusetts.     Suf- 
folk.    March,  1S71. 

Contract.  The  declurntion  contained 
two  countH, — tlie  (Irst  on  an  account  an- 
nexed, tlie  KL'conil  for  go<j(lM  ho1<1,  and  re- 
ferring til  I  lie  account  an  u  liill  of  purticu-' 
larH.  .lolin  S.  .Miuiny.  one  of  tlie  |)lain- 1 
tills,  testitii'd  tlint  plaintlffH,  as  «HHiy;nee.s 
of  tlie  InvciilopK'  Maiiufaclnrers'  Com- 1 
paui',  in  .Inly,  ISO'J,  took  poMsesHion  of  1 
tlieir  ;;oodH  in  a  8tore  in  lUiHton.  The 
Htock  included  "a  lot  of  cutlery,  plated 
ware,  ladien'  travcllinji  hagn,  pocket- 
bookH,  pencils,  and  fancy  iroodn."  Th" 
defendant  proposed  "  to  buy  for  cash  ail  I 
the  Koods  in  the  3lore  of  the  description 
named,  at  a  certain  discount  from  the 
niaiiufacturers'  list  of  prices,"  and  the 
plaintiffs  accejited  the  offer.  All  tlienoods 
of  that  description  were  then  taken  from  i 
the  places  where  tliey  had  been  Uei)t,  and  I 
put  by  themselves,  for  d(dlvery,  anil  a 
schedule  was  made,  showins  the  amount 
of  )54,l(i:5.7S  as  their  price  under  the  con- 
tract of  sale.  The  defendant  then  said 
that  he  could  not  pay  for  the  whole  of 
them,  but  would  like  apart  of  them  for 
his  customers,  and  was  allowed  to  take 
about  $I,l'0O  worth,  pnyinj,'  $1,(100  "on 
account."  The  defendant  at  the  time 
promised  to  paj-  the  balance  and  take 
away  the  rest  of  the  Koods  in  a  few  days. 
Thereat  of  the  goods  were  kept  at  the 
store  for  the  defendant  for  some  time,  un- 
til the  plaintiffs  were  to  vacate  the  store, 
when  plaintiffs  asked  thedefendnnt  topa.v 
the  balance  due  and  take  thegoods  away. 
Plaintiffs  refused  to  take  defendant's  iiot(> 
for  the  balance,  and  notified  iiim  that,  if 
he  did  nut  iiay  the  balance  and  take  the 
goods  away  before  they  vacated  thestore. 
they  should  store  them  at  his  risk  and  ex- 
pense, and  refused  to  let  him  have  them 
until  he  paid  for  them.  When  they  va- 
cated the  store  they  packed  and  removed 
them  ti>  the  waiehouse  of  one  of  the  plain- 
tiffs. Tile  defendant  was  present  at  the 
time,  and  made  no  objection,  iiromising 
to  pay  for  tliem  in  a  few  days  and  take| 
them  away.  The  defendant  then  offered 
the  plaintiff  at  whose  warehouse  they 
were  stored  an  assignment  of  certain 
leases  as  security  for  the  balance  due, 
which  plaintiffs  refused.  The  plaintiffs 
then  brought  this  action.  The  judge,  be- 
ing of  opinion  that  the  declaration  was 
insufruient  for  the  goods  not  taken  away 
by  the  defendant,  reported  that  c)iiesti(iii 
before  verdict,  for  the  determination  of 
the  court. 

A.  A.  Ranney,  (N.  Morse,  with  him.)  for 
plaintiffs.  J.  D.  lUcliardson,  for  defend- 
ant. 

CdLT,  J.  A  count  on  an  account  nn- 
noxed  may  be  used  under  our  statute, 
"where  the  action  is  for  one  or  more 
Items,  which  v.'ould  bo  correctly  described 
by  any  one  of  the  coinmon  counts."  Thi-s 
includes  an  action  for  the  price  of  goods 
bargained  and  sold,  as  well  as  one  tor 
goods  sold  and  delivered,  because  formerly 
the  price  in  such  ease  could    be   recovered 


under  an  Indebltatua  asHumpslt.  Steams 
V.  Washburn,  7  (Jray,  1H7.  Do  thefactH 
here  reported  justify  the  jury  In  llnding  lor 
the  plaintiffs  under  a  general  count  for 
goods  bargained  and  sold, or  such  a  count 
for  goods  sohl  and  delivered?  If,  so,  then 
the  declaration  on  the  account  annexed  is 
sufTicient,  and  the  case  slionld  have  been 
submitted  to  them. 

The  evidence  reported  tends  to  show  a 
completed  contract  of  sale.  .N'othing  re- 
mained to  be  done  by  cither  party,  in  the 
way  of  designating,  or  appropriating,  or 
accepting,  the  goods  sold.  'I'hey  were  all 
that  were  in  the  store  of  the  description 
named,  and  were  taken  from  the  shelves, 
scheduled,  and  put  by  themselves.  After 
they  were  tiins  set  apart,  the  defendaat 
took  a  portion  of  them,  jiaying  a  part  of 
the  price,  and  saying  that  he  liu>l  not 
money  to  pay  for  the  whole,  but  prom- 
ising to  pay  the  balance  in  few  iliiys. 
The  goods  have  since  been  kept  by  the 
plaintiffs  ready  to  be  surrendered  to 
the  defendant  upon  payment  of  the 
balance  of  the  purchase  money.  The 
purciiase  was  for  cash;  and  the  plain- 
tiffs had  a  right  to  retain  possession,  by 
virtue  of  their  lien  for  the  price.  The  con- 
tract of  sale  was  e.iecutod. 

It  is  a  familiar  rule  of  pleading  that, 
wlieii  the  terms  of  a  special  contract  have 
licen  so  far  performrd  thai  nothing  re- 
mains liut  a  mere  duty  to  pay  money, 
tiieii  the  amount  due  may  be  recovered 
under  a  general  count.  It  is  only  neces- 
sary to  ileclare  specially,  when  the  agree- 
ment remains  executory.  Tlius  when  the 
contract  of  sale  is  ciinil)lete,  and  the  ven- 
dee does  not  take  awa.v  the  goods,  the 
vendor  may  recover  the  price  in  indebitn- 
tus  assumpsit.  Tlie  law  does  not  recjuire 
tliat  coniplete  delivery,  that  actual  re- 
ceipt of  the  goods,  which  would  be  neces- 
sary to  defeat  the  vendor's  li.-n  for  the 
price,  or  his  right  of  stoppage  In  transitu, 
or  which  would  be  renuired  to  take  l In- 
case out  of  the  statute  of  frauds.  The 
term  "delivery"  Is  used  in  the  law  wf  sales 
in  very  different  senses.  It  is  used  in  turn 
to  denote  transfer  of  title  and  transfer  of 
possession;  anil  where  the  parties  have 
agreed,  and  thespecilic  articles  are  appro- 
priated and  accepted,  then,  Indeiiendently 
of  the  statute  of  frauds,  it  is  often  said, 
there  is  sullicient  delivery  to  pass  the 
title,  although  there  be  no  transfer  of  pos- 
session. .\iid  this  must  he  so.  In  order  to 
bo  consistent  with  the  lien  which  remains 
to  the  vendor  for  tlie  price.  -  Kent  Cora. 
(t;th  ed.)  VX2.  .Simmons  v.  Snift.  .'>  B.  &  C. 
N.")7.  In  Dixon  v.  Yates,  5  H.  &  Ail.  :!13, 
Parke,  J.,  said  that  when,  by  the  contract 
itself,  the  vendor  appropriates  to  the  ven- 
dee a  specific  chattel,  and  the  latter  there- 
by agrees  to  take  the  specific  chattel  and 
pay  the  stipulated  price,  the  parties  are 
then  in  the  same  situation  as  they  would 
be  in  after  a  delivery  of  goods  in  pursu- 
ance of  a  general  contract.  The  appro- 
priation of  the  chattel  Is  equivalent  to  de- 
livery by  the  vendor;  and  the  assent  of 
the  vendee,  to  take  the  specillc  articles 
and  pay  the  jirice.  Is  equivalent  to  his  (Ac- 
cepting" possession.  And  It  Is  now  well 
settled  that  "by  the  law  of  England,  by 
a  contract   for  the  sale  of  spcclUc  ascer- 


564 


MOUSE  V.  SHERMAN. 


tained  goods,  tlio  property  immediately 
vests  in  the  buyer,  and  a  ris'it  to  the 
I)rice  in  tlie  seller,  unless  it  can  he  shown 
that  such  was  not  the  intention  of  the 
parties."  Gilmour  v.  Supple,  11  Moore  P. 
C.  551,  r^dfi.  BlacklJurn,  J.,  in  Calcutta  & 
Burmah  Steam  Navigation  Co.  v.  De  Mat- 
tos.  32  L.  J.(N.  S.)  Q.  B.  322,  328.  See 
also  Damon  v.  Oshorn,  1  Pick.  47(5;  Mid- 
dlese.x  Co.  V.  Osgood,  4  Gray,  447;  Riddle 
V.  Varnum,  20  Pick.  280. 

In  At  wood  V.  Lucas,  53  Maine,  508,  cited 
for  tlie  defendant,  the  action  indeed  was 
upon  an  account  anne.xed,  which  would, 
as  we  have  seen,  have  been  maintained  by 
proof  of  goods  bargained  and  sold  mere- 
ly, as  well  as  by  proof  of  goods  sold  and 
delivered.  But  the  facts  of  tlie  case  are 
not  fully  stated  in  the  report;  the  ques- 
tion  passer!  upon,  as  appears  both  in  the 
opinion  of  the  court  ami  the  head  note  of 
the  reporter,  was  whether  general  indebi- 
tatus assumpsit  could  be  supported,  with- 
out proof  of  actual  delivery  and  accept- 
ance of  the  goods;  and  it  was  erroneously 
assumed  that  goods  bargained  and  sohl 
required  a  special  count,  and  could  not  be 
recovered  for  under  the  common  counts. 
That  case  therefore  is  of  no  weight  upon 
the  question  what  evidence  is  necessary 
to  maintain  an  action  for  goods  bar- 
gained and  sold. 

In  Turley  v.  Bates,  2  H.  &  C.  200.  the  dec- 
laration contained   a  special  count,  with 


counts  for  goods  bargained  and  sold, 
goods  sold  and  delivered,  and  on  an  ac- 
count stated;  the  plaintiff  sold  the  defend- 
ant a  quantity  of  clay  at  a  certain  price 
per  ton,  to  bo  carted  away  by  the  defend- 
ant and  weighed  at  his  own  exjjense;  it 
appeared  that  it  was  the  intention  of  the 
parties  that  the  property  should  pass  to 
the  bcyer;  and  it  was  held  that  the  plain- 
tiff might  recover  the  balance  of  the  price 
under  a  count  for  goods  bargained  and 
sold,  although  the  clay  had  never  been  all 
carted  away  and  weighed. 

It  is  competent,  of  course,  for  the  par- 
ties expressly  to  agree,  in  the  contract 
of  sale,  that  the  title  to  the  property  shall 
not  pass  except  on  the  performance  of  a 
precedent  or  concurrent  condition,  such 
as  the  payment  of  the  price.  It  is  then  a 
conditional  sale  strictly  ;  and  it  isfamiliar 
law  that  the  title  will  remain  in  the  seller. 
It  will  not  be  a  complete  sale;  it  is  then 
an  executory  contract;  and  it  may  be 
that  the  vendor's  remedy  is  only  upon  a 
special  count.  Thecaseshows  no  such  ex- 
press condition  here;  and  there  was  evi- 
dence enough,  in  the  opinion  of  a  majority 
of  the  court,  to  warrant  the  jury  in  find- 
ing that  it  was  the  intention  of  the  par- 
ties to  make  the  sale  complete  and  abso- 
lute, subject  only  to  the  vendor's  lien  for 
the  price.  Upon  such  a  state  of  facts,  as 
we  have  seen,  the  declaration  is  sufficient. 

Case  to  stand  for  trial. 


fi 


^ 


MORTON  0.  TIBBETT. 


567 


MOUTOX  T.  TIBBETT. 

(15  Q.  B.  428.) 

Queen's  Bench.    May  31,  1850. 

Debt  for  K'io(ls  Hold  and  delivered,  and 
HoodH  hurjiHiiied  and  Hiild.  Plea,  uun- 
(|iiani  indcliitatiiH.     JwHue  tliereoii. 

On  the  trial  Ijotore  Polloeli.  C.  15.,  at  tlie 
<'anil»ri(li;eHliire  wprinn  aHHizew,  1S49,  it  ap- 
peared that  the  action  wuh  IjruiiKlit  to  re- 
cover tlie  price  of  lifty  ijuarterH  of  wheat. 
On  2.'>tli  AuKUHt,  l,s4«,  the  ])laintiff  and  de- 
fendant  heinu  at  March  niaiket.  Hold  the 
wheat  to  the  defendant  by  sample.  1'he 
defendant  waid  tliat  he  wouUl  Heiid  one 
IOd;;lcy,  n  fjeneral  earlier  and  liKhtermnn, 
on  the  following  morning  to  re(reive  the 
residue  of  the  wheat  in  a  llj.;hter  for  tlie 
purpose  of  conveying  it  t)y  water  from 
March,  where  it  then  was,  to  Wiwljeuch  ; 
and  the  defendant  himself  took  the  sam- 
ple away  with  him.  On  'JCith  AuiinstEdu- 
ley  received  the  wiieat  accordinj^ly.  On 
the  same  day  thedefendant  sold  the  wheat 
at  a  profit,  hy  the  same  sani|ile,  to  one 
IlampHonat  Wislieach  market.  The  wheat 
ariiveil  at  Wislieach  in  due  course  on  the 
cveninj?  of  Monday  the  2Sth  Aujjust,  and 
was  tendered  hy  Edcley  to  Hnmpson  on 
the  followiuK  morniiiK,  when  he  refused 
to  take  it,  on  the  grounil  that  it  did  not 
correspond  witli  the  sample.  Up  to  this 
time  the  defendant  hail  not  seen  the 
wheat:  nor  had  anyone  e.xamined  it  on 
his  behalf.  Notice  of  Hanipson's  repudia- 
tion of  his  contract  was  jjiven  to  the  ile- 
fendant;  and  the  defendant  on  Wednesday 
thelJOth  Aumist  sent  a  letter  to  the  plain- 
tiff repudiatinf;  his  contract  with  the 
plaintiff  on  the  same  ground.  There  was 
no  memorandum  in  writing  of  the  barnain 
within  §  17  of  the  statute  of  frauds,  l'!t 
Car.  2,  c.  IS;  and  it  was  objected  tor  the 
defendant  that  there  was  no  evidence  of 
acceptance  and  receipt  to  satisfy  the  re- 
(|uirpnientH  of  the  same  section.  The  lord 
chief  baron  overruleil  the  objection  ;  and 
the  counsel  (or  the  defendant  addressed 
the  jury  e.xclusiveiy  on  the  question  of 
such  acceptance  and  receipt.  .\  verdict 
was  found  for  the  plaintiff,  and  leavegiven 
to  move  to  enter  a  nonsuit,  if  the  court 
should  think  either  that  there  was  no  ev- 
idence of  acceptance  an<l  receipt  ornosuch 
evidence  as  justilied  the  verdict. 

Hefore  CA.MIMSKl.L,  C.  J..  I'ATTE.SCN, 
COLKHIIXii:,  and  EHLE,  .J J. 

Worllcdge  in  Ivister  term.ls^i),  obtained 
a  rule  nisi  accordingly.  In  this  term  (.May 
22d)  .\ndrew8  atid  O'Mnlley  shewed  cause. 
Worlledge  and  Couch,  contra. 

CAMfBELL,  C..I.  In  this  case  the(|ues- 
tion  submitted  to  us  is,  whether  there  was 
an.v  evidence  on  which  the  jury  could  be 
justilied  in  tindlng  (hat  the  buyer acceiited 
thegofids  anil  actiialiy  received  the  same, 
so  as  to  render  him  liable  as  buyer,  al- 
though he  did  pot  give  any  tiling  in  ear- 
nest to  bind  the  bargain  or  in  part  pay- j 
nient,  and  there  was  no  noteor  memoran- 
dum in  writing  of  the  bargain. 

It  would  be  very  dilHcult  to  reconcile 
the  cases  on  this  subject;  and  the  differ- 
ence between  them  ma.v  be   acconnted   lor 


hy  the  exact  words  of  the  17th  Hcctlon  of 
the  statute  of  frauds  nut  having  been  al- 
ways had  in  recollection.  JudgeH  as  well 
as  (!<.unsel  have  supposed  that,  to  tlls- 
pense  with  a  written  meuioranilum  of  the 
bargain,  there  must  first  have  been  a  re- 
ceipt (jf  the  goods  by  the  buyer,  anil  after 
that  an  actual  acceptance  of  the  same. 
Hence  perhaps  has  arisen  the  notion  that 
there  must  have  been  such  an  accefitance 
as  would  preclude  the  l)uyer  from  (jiies- 
tioning  the  quantity  or  quality  of  the 
goods,  or  in  any  way  disputing  that  the 
contract  has  been  fully  performed  by  the 
vendor.  But  thewordsof  theact  of  parlia- 
ment are:  "No  contract  for  the  sale  of 
any  goods,  wares  and  merchandizes,  f-ir 
the  i)rice  of  £10  sterling  or  upwards,  shall 
be  allowed  to  be  good,  excejit  the  buyer 
shall  accept  part  of  the  goods  so  sold, 
and  actually  receive  the  same,  or  give 
something  in  eainest  to  bind  the  bargain, 
or  in  riart  of  payment,  or  that  soiiie  note 
or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or 
their  agents  thereunto  lawfully  author- 
ized." It  is  remarkable  that,  notwith- 
standing the  importance  of  having  a  writ- 
ten memorandum  of  the  bargain,  tlie  legis- 
lature appears  to  have  been  willing  that 
this  might  be  dispensed  witli  where  by 
mutual  consent  there  has  been  part  per- 
formance. Hence  the  payment  of  any 
sum  in  earnest  to  bind  the  bargain  or  In 
part  payment  is  sutlirient.  This  act  on 
the  part  of  the  buyer,  if  acceded  to  on  the 
part  of  the  vendor,  is  suHicient.  The  same 
effect  is  given  to  the  corresponding  act  by 
the  vendor  of  delivering  part  of  (he  goods 
sold  to  the  buyer,  if  the  liuyer  shall  accept 
such  part  and  actually  receive  the  same. 
.\H  part  payment  however  minute  the  sum 
may  be  is  sufficient,  so  part  delivery  how- 
ever minute  the  portion  may  be  is  sulli- 
cient.  This  shews  conclusively  that  the 
condition  imposed  was  not  the  complete 
fulfilment  of  the  contract  to  the  satisfac 
tion  of  the  buyer.  In  truth  the  effect  of 
fultilling  tlie  condition  is  merely  to  waive 
written  evidence  of  tlie  contract  and  to 
allow  the  contract  to  be  estaldished  by 
|)arol  as  before  the  statute  of  frands 
passed.  The  (juestion  may  then  arise, 
whether  it  has  lieen  performed  either  on 
the  one  side  or  the  other.  The  acceptance 
is  to  be  something  wliicli  is  to  precede  or 
at  any  rate  to  be  contemrioraneius  with 
the  actual  receipt  of  the  goiiclH.  and  is 
not  to  be  a  subsequent  act  after  the  good? 
have  been  actuiilly  received,  weighed, 
measured,  t>r  examine<l.  .-Vs  the  act  of 
parlianient  expressly  makes  the  accept- 
ance and  actual  rtveipt  of  any  part  of  the 
goods  sold  BUlhcient,  it  must  be  open  to 
the  buyer  to  objirt  at  all  events  to  the 
quantity  and  quality  cf  the  residue,  and 
even  where  there  is  a  sale  by  sample  that 
the  residue  offered  docs  not  correspond 
with  the  sample.  We  are  therefore  of 
opinion  that,  whether  or  not  a  delivery  of 
tlie  goods  sold  to  a  carrier  or  any  agent 
of  the  buyer  is  sullicient.  sllll  thire  may 
bean  acceptance  and  receipt  within  the 
meaning  of  the  act  without  the  buyer  hav- 
ing examined  the  goods  or  done  any  thing 
to  preclude  hiui  from  contending  that  they 


568 


MORTON  V.  TIBBETT. 


do  not  correspond  with  the  contract. 
The  acceptiuice  to  let  in  parol  evidence  of 
the  contract  ap|)ear8  to  us  to  be  a  differ- 
ent acceptance  from  that  which  affords 
conclusive  evidence  of  the  contract  having 
been  fulfilled. 

We  are  therefore  of  opinion  in  thin  case 
that,   although    tlie   defendant   had   done 


for,  that  there  mu.st  he  an  opportunity 
for  the  vendor  to  inspect  the  (quality  of 
the  thing  sold;  and  Abliott,  C.  J.,  founds 
hi.s  juiiKment  u[)on  this  consideration,  that 
the  defendant  had  no  rinht  of  property  in 
the  horse  till  the  price  was  paid,  and  could 
not  till  then  exercise  any  act  of  ownership 
over   l)im.     Holroyd,   J.,   says:   "There  is 


I 


nothing  which  would  have  precluded  him  i  no  evidence  to  shew  that"  the  vendor 
from  objecting  that  the  wheat  delivered  "had  ever  parted  with  the  possession"  of 
to  Edgley  was  not  according  to  the  con- 1  the  horse.  Next  conies  Hanson  v.  Arnii- 
tract,  there  was  evidence  to  justify  the  t  tage.s  Tliere  the  vendor,  who  resided  in 
jury  in  finding  that  the  defendant  accept-  ■  London,  having  been  in  the  habit  of  sell- 
ed  and  received  it.  '"g  goods   to   a   customer  in  the  country 

We  will  now  examine  the  eases  which  i  and  of  delivering  them  to  a  wharfinger  to 
are  supposed  to  prove  the  doctrine  that  j  be  forwarded  by  the  first  ship,  in  pursu- 
thcre  can  be  no  acceptance  within  the  ance  of  a  verbal  order  from  tlie  customer 
meaning  of  the  statute  of  frauds  unless  (ieliveied  a  parcel  of  goods  to  the  wharf- 
the  buyer  is  precluded  from  objecting  that  \  inger  to  be  forwarded  in  the  usual  nian- 
the  vendor  lias  not  fully  performed  the  j  ner.  The  customer  had  done  nothing  be- 
contract  on  his  part.  The  first  of  these  yond  givingthe  verbal  orderforthe  goods, 
was  Howe  v.  I'almer.i  which  we  clearly  .Abbott,  C.  J.,  in  a  very  few  words  deliv- 
think  was  well  decided,  although  we  can-  ^  ered  the  judgment  of  the  court  that  an  ac- 
not  concur  in  all  the  reasons  given  for  the  j  tion  could  not  be  maintained  for  the  price 
decision.  There  the  only  evidence  of  ac- 1  of  the  goods,  on  the  ground  that  the  ac- 
ceptance and  receipt  was  that  the  agent '  ceptance  in  this  case  not  Ijeing  by  the  par- 
of  the  vendor  who  had  verbally  sold  to  t^' himself  was  not  sufficient,  referring  to 
the  defendant  twelve  bushels  of  tares,  Howe  v.  Palmer,*  where  he  says:  "It  was 
part  of  a  larger  quantity  in  the  vendor's  I  held  that  there  could  no  actual  acceptance 
possession,  had  measured  off  twelve  bush- 1  so  long  as  the  buyer  continued  to  liave  a 
els  of  the  tares,  and  set  them  apart  for  the  i  right  to  object  either  to  the  quantum  or 
purchaser.  According  to  the  contract  I  quality  of  the  goods."  Rut  the  decision 
they  were  to  renrain  in  the  possession  of  inay  well  stand  on  other  grounds;  and 
the  vendor  till  calleil  for.  The  purchaser  |  we  may  observe  that  it  is  an  actual  re- 
therefore  neither  had  a(cei)ted  nor  received  i  eeipt  of  the  goods  which  the  statute  re- 
the  goods.  Abbott,  C.  J.,  does  say:  "Iflquires,  and  not  an  actual  acceptance, 
he  had  once  accepted  he  could  not  after- ^  Carter  v.  Toussaint^  was  llKewise  relied 
wards  make  any  objection,  even  it  it  j  upon,  but  it  was  merely  (like  Tempest  v. 
turned  out  that   the  tares   did   not   corre-    I<"itzgpraliH)  a  case  of  a  sale  by  pnr(d  of  a 


spond  with  the  sample."  But  this  obser- 
vation was  quite  unnecessary  for  the  de- 
termination of   the  case;    and,    with    the 


horse  that  remained  always  in  the  pos- 
session and  under  the  control  of  the  ven- 
dor, so    that    he  could   not   have   been  ac- 


rcost  sincere  respect  to  the  great  ju<lge  j  cepted  and  received  by  the  purchaser, 
from  whom  it  fell,  we  do  not  think  that  i  Abbott,  C.  J.,  .-"ays:  "The  plaintiff's  char- 
it  is  applicable.  Tiie  proper  ratio  deci- '  acter  of  owner  remained  unchanged  from 
dendi  seems  to  us  to  be  given  by  Holroyd,  j  first  to  last."  The  next  case  is  Smith  v. 
J.,  where  he  says:  "In  this  case  there  has  i  Surman,'^  and  there  after  a  sale  of  timber 
been  no  actual  receipt  of  any  part  of  the  [  by  parol  the  purchaser  had  offered  to  sell 
goods  sold  within  the  usual  meaning  of  |  the  Ijutts.  and  had  given  some  directions 
the  term,  and  1  think  that  what   has  been    about   crosscutting    the   timber:    but  the 


done  ought  not  to  be  considered  in  point 
of  la  was  an  acceptance.  For  supposing 
that  it  was  made  part  of  the  contract  in 
this  case  that  the  seller   should   set   ariart 


evidence  clearly  proved  that  the  whole 
continued  to  remain  in  the  possession  of 
the  vendor.  The  court,  as  might  have 
been  expected,  held  that  there  could  be  no 


and  measure  the  thing  scdd,  that  would  receipt  b.y  the  purchaser  while  the  posses- 
not  make  tlie  act  of  measuring  amount  to  sion  of  the  goods  remained  with  the  ven- 
a  virtual  acceptance  or  receipt  of  the  dor.  Avery  learned  judge,  my  Brother 
goods  by  the  buyer."  The  next  case  relied  Parke,  does  unnecessarily  add  :§  "That  the 
upon  is  Tempest  v.  Fitzgerald, 2  where  in  [later  cases  have  established  that,  uiness 
an  action  for  the  price  of  a  horse  that  had  1  there  has  been  such  a  dealing  on  the  jiart 
died  after  the  time  when  he  was  sold  by  of  the  purchaser  as  to  deprive  him  of  any 
parol  and  before  he  was  delivered  or  paid  j  right  to  object  to  the  quantity  or  quality 
for,  the  question  arose  upon  whom  the  ,  of  tlie  goods,  or  to  deprive  the  seller  of  hia 
loss  should  fall.  The  only  evidence  of  ac-  [  right  of  lien,  there  cannot  be  any  part  ac- 
ceptance and  receipt  was  that,  while  the  1  ceptance.  "  That  thete  can  be  no  accept- 
horse  remained  in  the  possession  of  tlie  [  ance  and  recei|)t  by  the  purchaser  while 
vendor,  the  purchaser  made  his  servant  [  the  lien  of  the  vendor  remains  is  clear 
gallop  the  horse  and  gave  some  directions  j  enough,  for  the  vendor's  lien  necessarily 
about  his  treatment,  requesting  that  he  supposes  tnat  he  retains  the  possession  of 
might  be  kejit  by  the  vendor  a  week 
longer.  The  court  held  that  there  had 
been  no  ai'ceptance  and  receipt  of  the  horse 
by  the  purchaser.  But  the  case  has  little 
connection   with  the  doctrine  contended 


^3  B.  &  Aid.  321. 
'3  B.  &  Aid.  6S0. 


'  5  B.  &  Aid.  5.57. 

'3  B.   &  Aid.  3-21. 

'  5  B.  &  Aid.  855. 

=  3  B.  &  Aid.  680. 

'9  B.  &  C  561. 

"9  B.  &  C.  57T. 


MORTOX  V.  TIBBETT. 


GO'J 


the  poods;  but  I  muHt  be  perniittcfl  to  | 
doubt  whether  the  caHos  roturred  to  hnve 
OHtnblJHhed  the  residue  of  the  rule.  Tlie 
la«t  ciiHc  cited  on  behalf  of  tl)e  defendant 
KUH  Norman  V.  Pliilli|)H.>'  This  cawe  very 
much  resembled  Hanson  v.  ArmitaKO,!"  i 
and  presented  no  stronjier  evidencj  of  a'j- 
ceptance  and  reroii)t.  The  defendant  iiv- 1 
ing  at  WolliuKford  fruve  the  plaintiff,  u 
timber  merchant  in  London,  a  verbal  or- 
der for  timber,  dirictiuK  it  to  be  sent  to 
the  PaddinRton  station  of  the  Great  West-' 
ern  Railway  so  that  It  niiKht  be  forward- 
er! to  him  at  \ValliiiKf<»r(l.  The  timber 
was  accnrdinKly  forwarded  to  the  Wal- 
lin^ford  station  ;  but  the  defendant  beiiiK  , 
informed  of  its  arrival  refused  to  have  any 
tiling  to  ilo  with  it.  The  court  held  that 
althouKJi  there  mif^ht  be  a  scintillu  of  evi-  { 
deuce  fcjr  the  jury  of  an  acce|)tance  of  the 
timber  within  the  statute  of  frauds,  yet 
there  was  not  sufficient  to  warrant  them 
in  finding  that  there  was  sucli  an  accept- 
ance; and  the  court  set  aside  a  verdict  for 
the  plaintiff  as  not  warranted  by  the  evi- 
dence. Aldersnii.  B.,8ays:  "The  true  rule 
api)ears  to  me  to  be  that  acceptance  and 
delivery  under  the  statute  of  frauds  means 
such  an  acceptance  ns  j)recludes  the  pur- 
chaser from  objecting  to  the  (juality  of 
the  goods."  He  adds  what,  with  great 
deference,  is  a  better  reason:  "The  carrier 
is  only  an  ogent  for  the  purpose  of  carry- 
ing, and  here  the  purchaser  liimHelf  Imme- 
diately refused  to  take  the  goods."  It 
was  upon  this  reason  that  the  rest  of  the 
court  appears  to  have  proceeded. 

If  there  were  such  a  rule  as  is  contende<l 
for  it  would  be  decisive  against  the  plain- 
tiff in  this  case,  for  the  defendant  never 
had  an  opportunity  of  examining  the 
goods  sold:  there  is  no  evidence  that 
Kdgley  was  bis  agent  for  that  pur[)ose; 
and  he  had  done  nothing  to  preclude  him 
from  objecting  to  the  quality  of  the 
wheat.  I'.ut  if  there  l)e  no  such  rule,  then 
surely  there  was  evidence  to  submit  to 
the  jury  and  to  justify  them  in  finding  an 
acceptance  and  receipt.  He  S|)ecially  sent 
Kilgley  to  receive  the  wheat  after  the  de- 
livery of  the  wheat  to  his  agent  and  when 
it  was  no  longer  in  the  possession  of  the 
vendor,  instead  of  rejecting  it  as  in  other 
cases,  he  e.Kercised  an  act  of  ownership 
over  it  by  re-selllng  it  at  a  firofit,  and  al- 
tering its  destination  by  sending  it  to  an- 
other wharf,  there  to  l)e  delivered  to  his 
vendee.  The  wheat  was  then  construct- 
ively in  his  own  i)ossessiou ;  and  could 
such  a  re-sale  and  order  take  place  without 
his  having  acce])ted  ami  received  tliecom- 
mctdity'.'  Does  it  lie  in  his  mouth  to  say 
that  he  has  not  acce|>ted  tliat  which  ho 
has  re-sold  and  sent  on  to  be  deliverefl  to 
another?  At  any  rale  Is  not  this  evidence 
from  which  such  an  acceptance  and  receipt 
may  be  inferred  by  the  jur.v?  Upon  sim- 
ilar evidence  the  finding  of  an  acceptance 
and  receipt  has  lieen  sanctioned  by  very 
eminent  judges.  In  Hart  v.  Sattley,!' 
where  goods  had  been  verbally  ordered  to 
be  sent  from  London  to  Dartnunith,  and 
were  sent    by  a   carrier  employed   by  the 


defendant,  and  were  not  proved  to  have 
been  rejecteil  by  hira,  although  there  was 
no  proof  that  they  had  conn-  to  Ills  hands, 
(.'ha mbre,  .J.,  is  reported  to  havesaid:  "I 
think  under  the  clrcumstani'eH  of  this  case 
the  defendant  must  be  consideri'd  as  hav- 
ing constituted  the  master  of  the  ship  his 
agent  to  accept  and  receive  the  goods." 
The  plaintiff  recovered  a  verdict  which 
was  not  disturbed.  In  Chaplin  v.  Rog- 
ers,i-  where  a  stack  of  hay  being  sold  by 
jiarol  to  the  detendiint  he,  without  pay- 
ing for  it  or  removing  it,  re-sold  a  part  of 
it  to  another  person  who  took  it  away, 
and  tlie  jury  found  that  the  defendant  hud 
accepted  and  received  the  stack  of  hay. 
Lord  Kenyon  sold:  "The  question  was 
specifically  left  to  the  jury  whether  or  not 
there  were  an  acceptance  of  the  hay  by  the 
defendant,  and  they  have  found  that  "there 
was,  which  puts  an  end  to  any  ijuestlon 
of  law."  "Here  the  defemlant  dealt  with 
this  commodity  afterwards  as  If  it  were 
in  his  actual  possession ;  for  be  sold  part 
of  It  to  another  person."  "The  other 
judges  agree<l  that  there  was  sulliclent 
evidence  of  a  delivery  to  and  acceptance 
by  the  defendant  to  leave  to  the  jury." 
And  the  verdict  for  the  plaintiff  was  con- 
firmed. .So  In  Blenkinsop  v.  Clayton,'-'' 
(jibbs,  C.  J.,  anrl  the  whole  court  of  cora- 
mon  pleus.  agreed  that  If  a  person  who 
has  contracted  for  the  i>urchase  of  gooda 
offers  to  re-sell  them  as  his  own,  whether 
this  be  proof  of  an  acceptance  and  receipt 
of  the  goods  by  himself  is  a  (juestion  for 
the  jury.  I  will  only  further  nu-ntlon  the 
well-considered  caseot  Bushel  v.  Whei'ler." 
decided  in  this  court.  The  dofendant  re- 
siiling  in  Herefordshire  had  verbally  or- 
dered goods  from  a  manufacturer  at  Bris- 
tol; according  to  his  orders  they  were 
sent  to  Hi  refold  and  deposited  in  a  ware- 
house there,  .\fterthey  harl  been  a  consid- 
erable time  there  the  defendant  repudiated 
them.  In  an  action  for  the  price  before  a 
most  learned  and  cautious  judge.  .Mr.  .lus- 
tice  Ersklne.  it  was  left  to  the  jury  wheth- 
er up<in  the  evidence  the  buyer  had  nccei>t- 
ed  and  received  the  goods;  and  the  verdict 
was  for  the  defendant,  with  liberty  to  cu- 
ter a  verdict  for  the  plaintiff  if  the  court 
should  be  of  opinion  that  there  was  an  ac- 
ceptance. A  rule  tr)  shew  cause  was 
granted  ;  iMid  cause  being  shewn  the  court 
unaniuKiiisly  apiiroved  of  the  direction, 
but  dec-lined  to  take  upon  themselves  to 
enter  a  verdict  for  the  plaintiff,  and  made 
u  rule  absolute  for  a  new  trial.  I  partic- 
ularly rely  upon  the  pointed  language  in 
that  case  of  my  Brother  Ccderldge.  who. 
after  observing  that  the  acceptance  re- 
quired by  the  statute  must  be  very  clear 
and  unequivocal,  says  that  It  may  be  con- 
structive; and  nilds  that  "it  is  a  ciiiestlon 
for  the  jury,  whether  under  all  the  rlroum- 
stances"  "tile  acts  which  the  buyer  docs 
or  forbears  to  do  are  an  acceptance  or 
otherwise." 

These  are  express  decisions  throiiah  a 
long  course  of  years  that  there  may  be 
an  acceptance  and  receipt  of  gtiods  liy  a 
purchaser    within   the  statute  of  fraudR, 


'14  M.  &  W.  277. 
"5   B.   &   Aid.   557. 
"3  Oampb.  52S. 


"1  East,  102. 
"  7  Taunt.  .'■.!)7. 
»S  Jurist.  5::l".  \Z 


Q.  B.  442,  note. 


570 


MORTON  V.  TIBBETT. 


nlthougli  he  has  had  no  opportunity  of 
examininK  them,  and  althouRh  he  has 
done  nothinK  to  preclude  himself  from 
objecting  that  they  do  not  correspond 
wiHi  the  contract.  We  approve  of  these 
decisions    thinkinj;   that   they  do   not  in- 


fringe upon  the  statute  of  frauds  and  that 
they  conduce  to  fair  dealinj;  in  trade. 

We  are  therefore  of  opinion  tliat  in  this 
case  the  rule  for  entering  a  nonsuit  should 
lie  discliarged. 

Rule  di.soharged. 


NATIONAL  BANK  o.  DAYTON. 


573 


NATIONAL  BANK  v.  DAYTON. 

(102  U.  S.  59.) 

Hupremo  Court  of  the  United  Stales.    Oct.  Term, 
1S80. 

Error  to  tlip  HU|>renie  court  of  Wyoming 
Territory. 

Siimuol  Slicllabarni'r  nnd  Jeremiah  S. 
Wilson,  lor  iihiiiiliff  in  error.  .Mr.  William 
A.  Maury,  for  ilcfeiidaiit  in  error. 

Mr.  .JiiKtirc  1 1. \ ULAN  delivered  the  o|)in- 
ion  of  the  court. 

TliiH  was  replevin  by  the  Wyoming  Na- 
tional liank  a^ainHt  TliomaH  .1.  Day  ton. 
The  latter,  n»  hheriff  of  Albany  county, 
Wyoming  territory,  haij,  by  virtue  of  .sev- 
eral attiicIitnentH  a^ainHt  the  property  of 
one  W.S.  liruniel, levied  upon  a  iiuinberof 
cords  of  wood.  The  bank,  claiming;  to  be 
the  owner  of  the  wood  at  and  before  the 
tiinewhen  the  writs  were  isHued  and  levied, 
brought  this  action  to  recover  it,  and 
daniaKes  for  the  <letention  thereof. 

In  the  court  of  ori^'iaal  jurisdiction  a 
verdict  was  returned  in  favor  of  tlie  de- 
fendant, and  judsnient  thereon  entered. 
From  the  judgment  of  atlirmance  by  the 
supreme  court  of  the  territory  the  present 
writ  of  error  is  iirosecuted. 

I'pon  the  question  of  the  ownership  of 
the  wood,  at  the  date  of  the  respective 
levies,  the  wvidence  was  conllictin>;,  and 
presented  a  case  peculiarly  vvilliiu  the 
province  of  the  jury  to  determine,  under 
proper  Huidance  as  to  the  law  soverniiifr 
it.  Without  attemptinu  to  set  forth  the 
whole  case,  it  is  sufficient  to  remark  that 
there  was  evideuce  to  establish  the  follow- 
iu>;  facts  : — 

lirauiel  was  enRaued  in  the  business  of 
briuKiufr  wood  down  the  liin'  Laramie 
river  to  Laramie  city.  He  had  a  con- 
tract with  the  I'nion  Pacllic  Railroad 
(_"ouipany  for  the  delivery  to  it,  at  its  yard 
in  that  "city,  by  a  specilied  date,  of  Hve 
hundreil  cords  of  wood  at  Sf."i  percord.  In 
the  necessary  prei)arations  for  that  en- 
KaKcnient,  he  had,  prior  to  Oct.  ;!(),  lsT;i. 
received  from  the  bank  about  flMOh.  which 
its  presiilent  testitied  had  been  ailvance<l 
to  him  at  different  times  on  this  same 
wood.  For  these  advances  the  l>ank  held 
his  notes.  On  the  day  last  named  he  ap- 
plied to  the  president  of  the  bank  for  a  fui-- 
ther  advance  of  money.  1 1  is  appliiMlion 
was  denied.  He  then  proposed  that  the 
bank  should  buy  all  the  wood  he  had, 
some  of  which  was  then  in  the  yard  of  the 
comnany,  but  not  received  by  it,  some  on 
the  bank  of  the  river,  and  some  in  the  river. 
This  proposition  was  at  lirst  declined; 
but.  after  further  con vei'sa tiou  between 
him  anil  the  president  of  the  bank,  it  was 
agreed  that  the  baidi  should  take  the  live 
liunilre<l  cords  at  $."i  per  cord,  to  be  paid 
for  in  tlie<lel)t  of  $l.'.l(>0,  then  held  by  the 
hank,  and  .'if400  in  cash,  upon  the  condi- 
tion that  the  company  would  receive  the 
wood  from  the  bank  upon  like  terms.  It 
was  a  part  of  the  arran^;ement  that 
Hramel  shoul  I,  in  that  evi'nt,  put  the 
wood  into  the  yard  of  the  company,  and 
use   the  $Mm  for  that    purpose,     lu  order 


to  ascertain  whether  the  company  wnnlil 
assent  to  this  arraai;ement,  the  bank 
cashier  anil  I'.ramel.  by  dli-ectlon  <if  the 
president  of  the  bank,  visited  .Mr.  Shank- 
land,  who  had  thecuntrol  of  all  such  busi- 
ness for  the  company.  They  returned  to- 
ftellier  and  reported  that  Shankland  ap- 
proved the  arranirenient,  and  would  moke 
out  the  vijuchersfor  the  wood  to  theliank. 
The  cashier  then  paid  $4tM)  to  Itrainel,  tak- 
ing bis  note  therefor,  bearing;  interest  ut 
three  percent  per  month;  and  the  latter 
went  on  putting  fe  wood  into  the  yard 
of  the  companj'.  He  had  delivered  at  that 
place  about  three  hundred  and  seventy- 
live  cords,  and  had  a  few  cordH  on  the 
river-liauk,  when  it  was  all  seized  by  the 
ilefendant  in  error,  under  the  attuchmeiitK 
against  Urainel's  property.  .None  of  the 
wood  had  then  been  actually  received  l)y 
the  company,  liramel's  notes,  to  whicli 
we  have  referred,  were  held  by  the  bank 
at  the  commencement  of  this  action. 
They  were  taken,  as  the  tiank  claimed 
and  i)roveil  by  its  president,  more  as 
memoranda  than  anytliinu  else,  and  had 
not  lieen  surrendered  to  liramel  berouse 
he  had  not  called  at  the  bank  for  them. 

Such  was,  substantially,  the  case  of  the 
bank.  We  do  not  say  that  tliejury  shoidd 
have  found  that  it  was  made  out.  even  by 
a  decided  preponderance  of  the  evidence, 
but  only  that  there  was  evidence  tending 
to  show  that  the  contract  and  acts  of  the 
parties  were  such  as  the  foregoing  state- 
ment sets  forth. 

I.ookinj;  at  the  case  in  the  lifrht  of  these 
facts,  it  seems  that  the  transaction  be- 
tween the  liank  and  liramel  was  some- 
thing more  than  a  mere  asireeinent  as  to 
the  disposition  of  the  money  to  In-  ob- 
tained from  the  company.  It  constituted 
a  sale  to  the  bank  of  all  the  wood  which 
he  delivered  at  the  yard  of  the  company. 
The  absolute  title  to  It  passed  tothebank 
upon  his  depiisiting  it  there,  with  the  in- 
tention or  for  the  purpose  of  completing 
the  sale.  Nothing;  more  remained  to  be 
done  by  him.  His  contr.iet  bound  hini 
to  deliver  the  wood,  not  to  thecompnnv. 
Init  at  its  yard  only.  In  li«nl  eonlemplu- 
tion,  it  then  can)e  into  the  possession  and 
control  of  the  bank,  and  was  not  there- 
after subject  to  be  reached  liy  hiscreditors, 
upon  the  mere  Kround  that  the  title  had 
not  passed,  or  that  a  complete  delivery 
had  not  been  made.  The  delivery  in  exe- 
cution of  the  contract,  at  a  specilled  place 
not  lielonjiinf:;  to  him.  was  such  as  accord- 
ed with  the  natureof  the  property.  W  hen 
placed  in  the  yard  of  the  company,  in  pur- 
suance of  the' ajireenient,  the  acts  of  tlip 
parties  united  with  the  previous  verlial 
contract.  rcsuIlinK  in  a  consuniinated  ob- 
ligatory agreement,  deprivini;  the  seller  of 
all  furtiier  control  of  the  proi)erty,  and 
putting  it  under  the  exclusive  dominion  oT 
the  tiiiver.  with  a  perfected  title  thereto. 

From  that  moment,  the  indebtedneHS  of 
the  seller  to  the  bank  to  the  extent  of  the 
contract  price  of  the  wood  actually  deliv- 
ered at  the  desi;;nated  place  was  dl8- 
charKed.  and  the  pror.erty  was  thence- 
forward at  tlip  risk  of  the  liuyer.  .\ctiinl 
manualpossessionof  the  liank  by  Its  aRcnta 
was.  under  the  circumstances  and  rotjnrd- 
inji  the  nature  of  the  property,  bothlinpruc- 


574 


NATIONAL  BANK  v.  DAYTON. 


ticable  and  unnecessary  to  a  complete  de- 
liveiy.  These  conclusions  are  atiumlantly 
sustained  by  authority.  Benjamin,  Sales, 
hk.  1,  pt.  2,  p.  134;  Hilliard,  Sales,  c.  7,  pp. 
124-130;  Browne,  Statute  of  Frauds,  c.  15, 
p.  323. 

The  instructions  were  not  in  accordance 
with  these  views.  The  coui't  failed  to 
state  distinctly  and  clearly  the  princiiiles 
of  law  by  which  the  jury  were  to  be  gov- 
erned. Taking  all  theinstructions togeth- 
•'jr,  it  is  evident  that  the  dejjosit  of  the 
wood  at  the  yard  of  the  company,  in  pur- 
suance of  the  previous  agreement  between 
the  bank  and  Bramel  that  it  should  be 
put  there  for  ultimate  delivery  to  the  com- 
pany, was  not  regarded  by  the  court  as 
such  a  change  of  possession  as  would,  in 
law,  pass  the  title  to  the  bank  as  against 
the  creditoi's,  whose  attachments  were 
subsequently  issued  and  levied. 

That  we  do  not  misinterpret  theinstruc- 
tioiis  is  quite  clear,  from  the  opinion  of  the 
supreme  court,  which  declaied  that  "the 
record  shows  that  the  full  and  absolute 
control  and  possession  of  the  same  was 
publicly  and  privately  retained  by  Bramel, 
after  the  alleged  unconditional  sale."  In 
view  of  the  pleadings  and  evidence  this 
could  not  be  the  case,  unless  the  court 
below  not  only  disregarded  the  evidence 
in  behalf  of  the  bank,  but  was,  further,  of 
opinion  that  the  delivery  of  the  wood  at 
the>ard  was  insufficient  to  pass  the  title, 
and  change  the  control  and  possession  of 
the  property  from  the  seller  to  the  buyer. 
But  that  po.sition,  as  we  have  seen,  is  un- 
sound both  upon  principle  and  authority. 
We  repeat  that,  it  Bramel  agreed  to  sell 
and  the  bank  agreed  to  buy  The  wood  at 
a  fixed  price  per  cord,  the  seller  to  remove 


the  wood  from  the  river  and  put  it  in  the 
yard  of  the  company,  for  sale  or  delivery 
to  the  latter  by  the  bank,  which  was  to 
receive  the  vouchers,  and  if  the  wood  was 
so  deposited  in  pursuance  of  that  sale  and 
agreement,  then,  in  legal  contemplation, 
the  title  and  possession  of  the  projjerty 
passed  to  the  bank  from  the  moment  it 
reached  the  yard.  If  after  being  placed 
there  and  betoreits  receipt  by  the  compa- 
ny the  wood  had  been  destroyed  orstolcn, 
the  loss  would  have  been  that  oftbel)ank. 
It  is  immaterial,  under  the  circumstances, 
that  the  company  had  not,  when  the  at- 
tachments were  levied,  expressly  or  form- 
ally recognized  the  bank's  ownership  of 
the  wood. 

Some  stress  was  laid  upon  the  fact  that 
the  hank  took  the  note  of  Bramel  for  the 
|4U0  advanced  to  him.  That  act,  it  is 
claimed,  was  incon.siatent  with  the  theory- 
of  an  absolute  purchase  by  the  bank. 
There  was,  however,  evidence  conducing 
to  show  that  the  bank  took  the  note  by 
way  only  of  precaution,  and  to  meet  the 
|)ossible  contingency  of  the  non-delivery  of 
the  wood  at  the  yard  of  the  company. 
But  it  was  for  the  jury  tosay  whar  weight 
should  be  given  to  that  fact  in  determin- 
ing, upon  the  whole  case,  whether  there 
was  an  actual  sale  of  the  wood.oronly  an 
agreement  as  to  the  disposition  of  the  pro- 
ceeds after  it  should  be  received  by  the 
company. 

The  judgment  will  be  revci-sed.  with 
directions  to  require  the  judgment  of  the 
court  of  original  jurisdiction  to  be  set 
aside  and  a  new  trial  gTaute<],  and  for 
such  further  proceedings  as  may  be  in 
conformity  with  this  opinion;  and  it  is 

So  ordered. 


1 


NEWIIALL  0.  CEXTHAL  PAC.  R.  CO. 


NEUHALI.  et  al.  v.  CF.NTHAL  PAC.  U.  CO. 

(51  Cal.  34.5.)- 

Supreme  Court  of  California.    July,  IS7G. 

Ap|)fal  from  district  court,  tifteentli  ju- 
dicial district,  city  and  county  of  Sun 
Fi-iiucisco. 

Caniiilicll,  Fox  &  Campliell,  for  appel- 
lant. \V.  II.  KliodeB,  S.  M.  Wilson,  and 
W.  W.  Cope,  for  respondents. 

CROCKETT,  J.  This  case  comes  up  on 
tlie  finiliiiKs,  and  there  is,  tlieretore,  no 
controverHV  as  to  the  facts;  the  only 
(juestion  bcinK.  whether  the  ])laintiffw  are 
entitled  to  jud;;ment  on  the  facts  found. 
The  facts  necessary  to  a  correct  under- 
standiii:;  of  the  only  question  of  law  in 
the  case  are,  that  a  mercantile  tirni  in 
New  York  sold  certain  merchandise  on 
credit  to  a  similar  lirrn  in  San  Francisco, 
and  shipped  the  same  in  the  usual  course 
of  business,  by  railway,  to  the  veiKlees  as 
consifjnees,  under  bills  of  ladinjr  in  the 
usual  form.  The  bills  of  lading  were  re- 
ceived at  San  Francisco  by  the  consiKnees 
before  the  ^oods  arrived;  and  while  the 
nicrchnndise  was  in  transit,  in  the  custody 
of  the  <lefendant  as  a  common  carrier,  the 
consiy:nees  failed,  and  became  insolvent, 
and  theieupon  the  vendors  notified  the  de- 
fendant in  writin;i  that  they  stopped  the 
Roods  in  transitu;  that  the  vendees  had 
become  insolvent,  and  the  (roods  were  not 
paid  for.  and  that  they  must  not  be  deliv- 
ered to  the  consi:;neey,  but  to  the  vendors. 
The  plainiiffs  then  were,  and  for  many 
years  had  been,  auctioneers  and  commis- 
sion merchants,  doinjr  business  in  San 
Francisco,  and  liad  been  in  the  liabit  of 
receiving  from  the  coiisii;nees  bills  of  lad- 
inn,  and  floods  under  them,  for  sjile  on 
commission.  About  two  hours  after  the 
notice  of  stopijane  in  transitu  was  served 
upon  the  di'lendant,  tlii'  consi>;nees  in- 
dorsed and  delivered  the  bills  of  lading  to 
the  plaintiffs,  who,  on  the  faith  thereof 
and  of  the  ki""'"  n&mc<l  therein,  "ad- 
vanced a  Kiim  of  money  to  the  consi(;nees 
in  the  usual  course  of  business;"  and  the 
sum  so  advanced  was  to  be  reiiul)ursed 
<mt  of  the  pi-oceeds  of  the  uoods,  which 
were  to  be  sold  at  auction  tiy  the  plain- 
tiffs. .At  the  time  of  the  indorsement  and 
transfer  of  the  bills  of  lading  to  the  i)lain 
tiffs,  they  had  no  notice  that  the  con- 
sijinecs  were  in  failing;  circuinstances,  or 
had  failed,  or  1liat  any  notice  of  stopp.iKe 
in  transitu  had  been  served  ui)on  the  de- 
fendant. While  the  goods  were  still  in 
the  possession  of  the  defendant  as  a  com- 
mon carrier,  the  plaintiffs,  as  holders,  ex- 
hii)lted  to  the  ilefendant  the  bills  of  lad- 
ing, tendered  the  char;;es,  and  denianded 
«  delivery  of  the  gooils.  which  was  re- 
fused, and  the  action  is  to  recover  their 
value. 

The  question  involved  being  one  of 
sreat  practical  iiiportanee.  it  has  been 
disc\issed  by  coutisel  both  orally  and  in 
printed  arfiummts,  with  learninsi  and 
ability,  lint  after  the  most  cartful  re- 
search, they  have  Iiiiled  to  call  H)  our  at- 
teuiltin  a  siUK'e  adjudicated  case  in  whicii 
the  precise  question  under  review  has  been 
decided  or  discussed.  There  are  numer- 
LAW  SALtii — 37 


OU8  decision-),  both  in  i;nKlnnd  and  Amer- 
ica, to  the  effect  that  where  goodH  arecon- 
siiriied  by  the  vendor  to  the  vendee,  under 
bills  of  lading  in  the  usual  form,  as  In  thla 
case,  an  attempt  by  the  vendor  to  stop 
the  iroods  In  transitu  will  be  uiiavalline 
as  against  an  assignee  of  the  bill  of  lad 
iiiK.  who  took  It  in  >fi>od  faith,  for  a  val- 
uabl"  consideration,  in  the  usual  cour-«« 
of  l)usiness,  before  the  at  torn  [>ted  stoppaKe. 
The  leadinK  case  on  this  point  1h  Lickbar- 
row  v.  .Mason  (2  Term  K,  at),  the  author- 
ity o(  which  has  been  almost  univerKally 
ucquiesce<l  in  by  the  courts  and  text-writ- 
ers, in  this  country  and  In  iCnt;lund. 
There  beluK  little  or  no  conflict  in  the  au- 
thorities on  the  point  adjudicated  in  that 
case,  it  would  be  useless  to  reeapitulate 
them  here.  liut  it  is  Important  to  ascer- 
tain the  principles  which  underlie  thene 
decisions,  that  we  may  determine  to  what 
extent,  if  at  all,  they  are  upidlcable  to  the 
case  at  bar.  The  first,  and,  as  I  think, 
the  controllinc,  point  determined  in  these 
cases,  is,  that  by  the  bill  of  l.idiuK  the 
li'Kal  title  to  the  ;;oodH  [>asses  to  tlie  ven- 
dee, subject  only  to  the  lien  of  the  vendor 
for  the  unpaid  price;  which  Hen  continuett 
only  so  lonn  as  the  goods  are  in  transit, 
ami  can  be  erjforcecl  oidy  on  condition 
that  the  vendee  is  or  becomes  Insolvent 
while  the  gooils  are  In  transit. 

On  the  failure  of  each  of  these  condi- 
tions, the  ri2;ht  of  stoppage  is  gone,  and 
the  lien  ceases,  even  as  against  the  vendee, 
liut  it  is  further  settled  liy  these  adjudica- 
tions, that  if  the  bill  of  lading  i.s  assigned, 
and  tile  legal  title  passes  to  a  bona  tide 
|)urchaser  for  a  valuable  consideration  be- 
fore the  right  of  stoppage  is  exercised,  the 
lien  of  the  vendor  ceases  as  against  the 
assignee,  on  the  well-known  principle 
that  a  secret  tru.--t  will  not  be  enforced  as 
against  a  bona  fide  Indder  for  value  of  the 
legal  title.  In  such  a  case.  If  the  eijultlea 
of  the  vendor  ami  assignee  be  considered 
equal  (and  this  is  certuinly  tlie  light  most 
favoralile  to  the  vendor  in  which  the 
transaction  can  t)e  regarded  i,  the  rule  ap- 
plies tliat  where  the  equities  are  equal  the 
legal  title  will  prevail.  Hut  in  such  a  case 
it  would  beiiilhcult  to  miintain  that  the 
equities  aree<inal.  The  vendor  has  volun- 
tarily placed  in  the  hands  of  the  vendee  a 
muniment  of  title,  clothing  him  with  the 
a|q)arent  ownership  of  the  goods;  and  a 
person  dealing  «ith  him  in  the  usual 
course  of  l)usiness,  who  takes  an  assign- 
ment for  a  valualile  consideration,  with- 
out notice  of  such  circumHtances  as  render 
th"'  bill  of  lading  not  fairly  and  lionestly 
assignable."  has  a  superior  equity  to  that 
(»f  the  vemlor  asserting  a  recent  lien, 
known,  ]ierhnps.  only  to  himself  ami  the 
ven<lee.     (lirewster  v.  .Sime. -41.' t'al.  I:!;i.) 

These  being  the  conditions  which  ileter- 
mlne  and  control  the  relative  rights  of  the 
vendor  and  assignee,  where  the  assign- 
ment  is  maile  before  tlienoticeof  stoppage 
is  given,  precisely  the  same  principles.  In 
my  opinion,  are  ap|ilicable  when  the  as- 
signment is  made  after  the  earlier  Is  nt>- 
titied  by  the  veiidor.  .\ot  withslantliiiK 
the  notice  to  the  carrier,  the  vendor's  lien 
continues  to  l>e  only  a  secret  trust  as  to 
a  person,  who, in  the  langu;ige  of  Mr.  Uen- 
jainin,  in  his  work  on  Sales,  section   eight 


578 


NEWIIALL  V.  CENTRAL  PAC.  R.  CO. 


liundrerl  and  Hixly-six,  taUes  an  assign- 
nientofa  bill  of  killing  "  without  notice 
of  such  circumstance  as  renders  the 
bill  of  lading  not  falrl.v  and  honestly 
assignable."  The  law  providesno  method 
by  which  third  persons  are  to  be  af- 
fected with  constructive  notice  of  acts 
transpiring  between  the  vendor  and  the 
«arrier;  and  in  dealing  with  the  vendee, 
whom  the  vendor  has  invested  with  tlie 
legal  title  and  apparent  ownership  of  the 
goods,  a  stranger,  advancing  his  money 
<in  the  faitli  of  tliis  apparently  good  title, 
is  not  bound,  at  his  peril,  to  ascertain 
whether,  possibly,  the  vendor  may  not 
have  notified  a  carrier — it  maybe  on  some 
remote    portion    of   the    route — that   the 


goods  are  stopped  in  transitu.  If  a  per- 
son, taking  an  assignment  of  a  bill  of  lad- 
ing, is  to  encounter  these  risks,  and  can 
take  the  assignment  with  safety  only  after 
he  has  inciuired  of  the  vendor,  and  of  every 
carrier  tlirough  whose  hands  the  goods 
are  to  come,  whether  a  notice  of  stoppage 
in  transition  has  been  given.  It  is  quite 
certain  that  prudent  persons  will  cense 
to  advance  money  on  such  securities,  and 
a  very  important  class  of  coruniercial 
transactions  will  i)epractic»lly  abrogated. 
In  my  opinion  the  judgment  should  be  af- 
firmed, and  it  is  so  ordered. 

Mr.  Chief  Justice  WALLACE  did  not  ex- 
press an  opinion. 


XEWIIAI.L  0.  L\S(;\H)S. 


bSl 


NEWHALL  V.  LA.NUDON. 

(39  Ohio  St.  87.) 

Supreme  Court  of  Ohio.     Junuaiy  Term,  1883. 

Krror  to  district  CDurt,  Hamilton 
county. 

Action  by  Newhall,  Gale  &  Co.  n.(;>iinHt 
Lini^filon  &  Son  to  recover  lialnnrc  dne 
on  r>U  linn-t'ls  oi  llonr,  nt  .If'i.l.")  per  linrrcj. 
'I'h(!  nnHwcr  ndniittcd  tlic  purcliUHf  of  17 
ImriolH,  (inij  .•illcf^cd  pnynicrit  tlu-reldr,  l)Ut 
ilciiicd  t lie  |Mirchn.-i<>  anil  delivery  of  tlie 
li.iliine.'.  Tile  followinn  were  the  Hpeclal 
Uridines  of  fact  in  the  CDnnnon  pleas: 
"FirHt.  On  August  L's,  INTO,  during  the 
forenoon,  (he  plalnliffH,  \vh(»  were  at  tliat 
diite  conirni.s.siiin  tnerchantH,  in  Ciminnuti, 
Ohio,  coiitraeted  to  Hell  the  defendantH 
fifty  l)arrels  of  fl'iiir  of  u  particular  (juaj- 
ity  and  hrand.  The  price  ti.xed  by  tliecon- 
tract  waw  $7>.^'>  per  liarrel.  On  the  after- 
noon of  the  Haine  day  the  defendants  re- 
ceived from  the  plaintiffs  an  onler  upon 
the  Dayton  Shoit-IJne  Itailroad  ("oniiiany 
for  the  delivery  to  the  defendants  of  hfty 
t)arrels  of  Hour,  of  the  l)rand  and  ehar- 
neter  called  for  tiy  the  terms  of  the  con- 
tract. .Second.  The  plaintiffs  were  the 
owners,  at  the  time  of  nivirit;  the  order,  of 
one  hundred  barrels  of  the  brand  and 
character  called  for  by  the  contract.  Said 
one  hundred  barrels  of  Hour  had  ai  lived 
ut  the  de|)ot  of  said  raili'oad  company  in 
I'incinnati,  and  was  stored  in  the  depdt 
in  a  i)articular  location  or  conipartiiieut. 
On  said  "JStli  day  of  Anyrust  plaintiffs  H(dd 
twenty-live  liarrels  ctf  said  one  huniired 
biirrels  to  one  Smith,  and  ;:ave  him  an  or- 
<ler  upon  the  railroad  company  therefor. 
On  the  L".»th  of  Aunust  they  sold  to  one 
Sweeney  twenty-live  liarrels,  and  ;;ave 
him  an  order  therefor.  On  the  L".tth,  be- 
tween four  and  live  o'cloi  k  1".  M.,  the  de- 
fendants sent  their  drayman  to  the  depot, 
with  the  onler  for  the  titty  barrels  for  the 
purpose  of  obtaining  son)e  of  the  Hour. 
He  delivered  the  order  to  the  railroad 
clerk,  took  seventeen  barrels  of  the  llonr, 
left  the  order  with  the  railroad  clerk,  who 
noted  the  delivery  of  the  seventeen  barrels 
on  the  back  of  It,  and  hauled  the  seven- 
teen liarrels  to  defendants'  stoi'e,  pursuant 
to  his  instructions.  Later  in  the  after- 
noon of  the  l".lth.  Smith  and  Sweeney  re- 
ceived and  hauled  away  the  remainder  of 
Hour,  due  them  upon  their  respective  or- 
<l"rs,  thus  leavin;;-  thirty-three  barrels  of 
the  one  hundred  before  referred  to.  Duiim; 
the  ni'xt  suceeedinu  ni;iht,  to  wit,  at  11!'.; 
o'clock  A.  .\1.,  Aufinst  the  .•!Oth,  the  dep.if 
was  burned,  and  the  t  hirty-three  barrels 
of  Hour  left  of  the  one  hundred,  as  above 
staled,  were  totally  destroyed.  Subse- 
quently the  defeuilants  paid  illaiutiffs  for 
the  seventeen  barrels  which  had  been 
hauled,  such  payineut  beiuK  without  prej- 
udice to  the  rights  of  either  party  touch- 
lii«'  the  remninint;  thirty-three  barrels. 
Thiril.  Neither  the  plaintiffs  nor  the  rail- 
road eomiinny  set  apart  at  any  time  any 
Bliecilie  barrels  to  the  defendants,  and 
there  «  as  no  such  setting  off,  nnlQ,ss  the 
fact  that  Sweeney  and  Smith  haule<l 
away  all  of  the  Hour  save  the  thirty-three 
barrels   which    were   left,  and   the  hauling 


of  the  seventeen  barrels  hauled  by  defend- 
ants, amounted  to  such  separation  and 
appropriation.  Neither  defenilants  nor 
any  of  their  ncents  saw  any  of  the  flour 
which  remained  after  the  drayman  look 
away  the  seventeen  barrels,  ruir  had  they 
seen  any  part  of  the  one  imndred  at  uny 
time  prior  to  the  hunlint;  of  the  seventeen 
barrels,  nor  dii]  they  know  ot  the  sales  to 
.Smith  and  Sweeney,  or  the  removal  of  nnv 
flour  by  (liem  until  after  the  lire.  I'onrtli. 
The  usa^e  of  business  In  Citiclnnati,  be- 
t%veen  buyers  and  sellers  of  Hour,  at  and 
liefore  the  ilates  named,  was  this:  I'lonr 
arrives  at  the  depots  consi^'ued  to  com- 
mission merchants.  The  railroad  com- 
pany notlHes  the  merchant  of  Its  arrival, 
who  pays  the  freight,  and  .-i«ns  n  full  re- 
cei()t.  acknowledging  the  delivery  of  the 
Houi'  to  him.  The  railroad  company  then 
stores  the  Hour  in  a  jiarticular  loeatlcm  or 
compartment  in  its  depot,  of  which  the 
merchant  is  advised.  He  then  makcH 
sales,  and,  upon  the  conclusion  of  an 
aRreemeut  of  sale,  he  hands  to  the  buyers 
an  order  upon  the  rnilroarl  company  for 
the  nun:ber  of  barrels  caller]  for  by  the 
conlrnct.  The  purchaser  sends  h's  dray 
or  w  a  iron  with  the  order.  The  drl\er  <le- 
livers  the  order  to  the  r.-iilroad  clerk,  wlui 
Iioints  out  the  Inention  or  compartment 
in  which  the  flour  against  which  the  or- 
der Is  drawn  is  contained,  and  the  driver 
proceeds  to  loail  his  vehicle.  If  (he  order 
calls  for  a  certain  number  of  liarrels,  and 
the  comiiartnient  contains  a  lar;;er  num- 
ber, the  clriver  makes  the  selection  and  re- 
moval of  the  iiumber  to  which  he  Is  en- 
titled, and  recei|itH  for  them.  The  order  in 
left  with  the  railroad  compi.ny  when  the 
llrst  load  is  hauled,  and  separate  receipt 
fiivenby  the  haulerfor  the  amount  of  each 
load.  The  p.-irties  to  this  suit  umlersloud 
and  pursued  this,  the  usual  mode  of  trans- 
actiiiK  this  business.  The  order  from  Iho 
seller  to  the  buyer  u|ioii  the  railroad  com- 
pany speciHes  the  number  of  barrels,  the 
number  of  the  car  upon  which  the  llonr 
was  transported  to  the  ilepot,  ami  the 
number  of  the  locntion  or  <'oiniiartinfnt 
in  which  it  is  stored;  also  the  liriind  and 
quality  of  the  flour.  Fifth.  The  one  hun- 
dred barrels  ot  Hour  before  referred  to  waB 
all  that  was  in  the  location  in  which  It 
was  stored  on  the  "-'sth.  iMlth.  and  :iltli  <if 
Aiiiiust,  mill  it  was  all  alike,  and  answered 
tlie  terms  of  the  contract  between  the 
Illaiutiffs  and  defendants  in  all  res|iivtH.  " 
The  conclusions  of  law  were:  "  First. 
That  upon  the  facts,  asfound  byllieconrt, 
the  title  to  the  thirty  tliree  barrels  of  flour 
destroyed  in  the  ilepot  remained  in  the 
plaiullffs  until  the  destruction  thereof  by 
lire,  and  did  not  pass  to  the  defendants. 
Second.  That  the  plaintiffs  are  not  enti- 
tled upon  said  facts  to  maintain  an  action 
aualnst  the  defendants  as  to  said  thirty- 
three  barrels  as  for  ;;oods  biir»;alned  niu] 
sold,  or  irooils  sold  and  delivered.  Third. 
It  is  therefore  adjudged  that  defendanffl 
y;o  hence  without  day,  and  rei'over  their 
costs  in  this    behall   expended,  and    faxed 

at  ? .     To  all  of  which  said  plalntlff«, 

by  their  counsel,  except.  .liidKuient  and 
liiidintrs  of  court  for  defendants.  I'laln- 
tiffs  except.     Motion    for   new     trial    over- 


582 


NEWHALL  V.  LAXGDON. 


ruled,  to  which  plalntiffa  except."  This 
judKineiit  was  affirmed  by  the  district 
court. 

Rnmsey  &  Matthews  and  C.  B.  Mat- 
thews, for  plaintiffs  in  error.  P.  H.  Kuni 
ler,  Drausin  Wiilsin,  and  .lames  H.  Per- 
kins, for  defendants  in  error. 

JOHNSON.  C.  J.  Since  the  decision  of 
Whitehouse  v.  Frost,  12  East,  614,  the 
cases  l>earinp:  on  tlio  question  here  in- 
volved have  l)een  numerous,  bnt  by  no 
means  uniform.  The  tendenc.v  of  the 
more  recent  cases  has  been  to  follow  that 
ease,  though  its  correctness  has  l)een  ably 
challenged.  This  tendency  has  arisen  out 
of  the  apparent  necessity  of  adap'ting  the 
Iiriiiciples  of  the  common  law  to  the 
changes  in  the  new  methods  adopte<l  for 
the  transaclion  of  hnsiuesa. 

The  accepted  piliioiples  of  right  and  jus- 
tice form  the  grouncUvorU  of  the  law  of 
contracts.  In  all  (luestions  involving 
contract  relations,  the  convenience  and 
wants  of  business  give  rise  to  usages 
which  become  part  of  the  contract,  where 
It  is  made  with  leference  to  such  usages. 
This  is  often  called  the  expansive  i)rop- 
erty  of  tlie  common  law,  but  it  is  rather 
the  application  of  accepted  principles  of 
right  and  justice,  as  evidenced  by  com- 
mon law,  to  new  phases  and  methods  in 
the  transaction  of  business. 

in  view  of  the  nature  of  this  particular 
business,  in  case  at  bar,  and  the  known 
usage  governing  buyer  and  seller,  we 
think  it  clear  that,  as  between  them,  by 
the  delivery  of  the  order  from  the  seller, 
by  the  purchaser  to  the  warehouseman, 
and  his  acceptance  of  the  same,  the  right 
to  the  fifty  barrels  of  flour  was  perfected 
in  the  purchaser,  and  that  thereafter  it 
became  his  property.  It  is  true,  there 
were  one  hundred  barrels  out  of  which  the 
order  was  to  be  filled,  but  it  was  all  of 
the  same  quality,  and  by  the  known 
usage,  the  onl.y  delivery  to  be  made  by  the 
seller,  was  b.v  an  order  on  the  warehouse- 
man, which,  when  presented,  entitled  the 
purchaser  to  separate  and  remove  the 
propert.v. 

No  selection,  properly  speaking,  had  to 
be  made,  as  all  the  l)arrels  were  alike, 
but  only  a  counting  off  and  separa- 
tion, and  in  this  I'espect  it  differs  from 
those  cases  where  it  is  the  inten.tion  of 
the  parties  that  there  is  to  be  a  selec- 
tion or  designation  out  of  thelargcrquan- 
tity.  The  effect  of  a  known  usage  onsuch 
a  transaction  is  settled  in  Steel  Works  v. 
Dewey,  .37  Ohio  St.  242.  In  that  case. 
Dewey,  Vance  &  Company  hud  a  contract 
for  a  large  (piantity  of  ore,  belonging  to 
the  Iron  Mountain  t.'omiian.v,  to  be  taken 
from  a  larger  quantity  l.ying  on  the  bank 
of  the  river.  They  sold  to  the  steel  works 
part  of  the  ore  so  situated,  and  gave  the 
purchaser  an  order  on  the  Iron  Mountain 
Company  for  the  san'.e,  which  was  pre- 
sented and  accepted.  B.v  the  terms  of  the 
contract,  and  by  the  usage  of  the  busi- 
ness, purchasers  were  to  take  away  their 
ore  by  l)oats  during  the  year,  or  the  order 
would  be  canceled.  Owing  to  ice  and 
other  causes,  the  ore  was  not  taken  away 
by  the  steel  works  during  theyear,  though 


it  was  there  for  them  in  mass  with  the 
larger  lot.  It  was  held,  that  as  betw-een 
Dewey,  Vance  &  Company  and  the  steel 
works,  and  in  view  of  the  usage,  the  sale 
was  completed,  and  the  right  to  the  ore 
vested  in  the  steel  works,  without  any 
separation  from  the  larger  mass.  We 
think  thi!<  case  is  decisive  of  the  case  at 
bar. 

Woods  V.  McGee,  7  Ohio,  pt.  2,  p.  128 
(4l:i),  is  relied  on  to  sustain  the  court  he- 
low,  and  but  for  the  effect  of  the  known 
usage,  tlie  language  of  ,Iudge  Grimke  sus- 
tains this  daiu).  An  examination  of  the 
facts  of  that  case  will  show,  that  while 
the  judgment  is  right,  yet  it  did  not  nec- 
essarily depend  upon  the  principles  dis- 
cussed and  declared  by  the  learned  judge. 
That  was  trover  by  Woods  against  Mc- 
Gee, a  warehouseman,  for  the  wrongful 
conversion  of  three  hundred  barrels  of 
flour,  which  he  claimed  to  own.  Thefacts 
were  these:  Swearinger  owned  fifteen 
hundred  barrels  of  flour,  viirying  in  value 
from  twenty-five  to  fifty  cents  per  barrel, 
which  was  stored  with  McGee,  a  ware- 
houseman. Out  of  this  lot,  Swearinger 
sold  to  lluttou  six  hundred  barrels,  and 
on  the  2ltd  of  April,  gave  him  an  order  on 
MctJee  for  the  same.  On  the  same  da.v, 
Hutton  assigned  the  order  to  tiordon 
andSidwell.  Seven  da.vs  thereafter,  (ior- 
don  assigned  to  plaintiff.  Woods,  all  his 
interest  in  the  order  and  purehase.  This 
was  on  Ma.v  1.  The  order  was  not  pre- 
sented to  tiie  warehouseman  until  May  21, 
when  Woods,  as  assignee  of  (iordon's  in- 
terest, received  from  McGee  three  hundred 
barrels,  and  Sidwell  receiveil  three  hun- 
dred barrels,  and  in  each  case  McGee  took 
a  receipt  for  the  amount,  from  the  res[iec- 
tive  parties.  Wood  sued  for  the  three 
hundred  barrels  delivered  to  Sidwell,  on 
the  ground  that  he  had  purchased  the 
same  of  Sid  well,  prior  to  said  deliver.v, 
through  his  agent,  Gordon.  Of  this  sale 
McGee  had  no  notice,  and  it  api)ears  that 
Sidwell,  at  the  time  he  received  the  flour, 
presented  the  original  order  with  the  as- 
signment thereon  b.v  Hutton  to  himself 
and  Gordon,  and  with  the  assignment  of 
(jordon,  otil.v  of  his  interest  to  Woods. 
Looking,  therefore,  to  the  order,  one-half 
this  flour  belonged  to  Sidwell,  when 
delivered  to  him,  and  the  warehouseman 
who  delivered  the  same  to  him  in  good 
faith,  could  not.  on  any  principle  (jf  jus- 
tice, be  charged  in  trover  in  favor  of  an 
unknown  ijurchaser,  when  lie  had  strictly 
complied  with  the  terms  of  the  order 
showing  the  right  in  Sidwell. 

The  distinction  between  that  case  and 
the  one  at  bar,  is  so  manifest,  that  even 
conceding  the  correctnei-s  of  the  principles 
stated  b.v  the  learned  judge,  independent 
of  any  usage  on  the  subject,  and  it  is  un- 
necessary to  question  thetu,  they  do  not 
control  in  this  case. 

1st.  There  the  question  was  considered, 
unaffected  by  any  usage,  in  the  light  of 
which  the  parties  acted. 

2d.  In  that  case,  the  order  was  never 
presented  by  the  holders  and  accepted  b.y 
the  warehouseman,  as  in  this,  nor  does  it 
appear  that  he  knew  of  its  existence,  or  ol 
the  assignments  indorsed  thereon,  until 
the   day  when  all    the  flour  was  delivered. 


XKWIIALr.  V.  L.VNODOX. 


583 


one  hHlf  to  cncli  nKsiKneo,  as  dircctod  by 
the  orikT.  So  fur,  tliyrefore,  aH  the  ac- 
(■p|)t;iiii-e  of  thf  order  l).v  the  warelioiiHC- 
innii  iilfectH  the  qiiostion  ol  ownerKhip,  as 
hctween  seller  and  l)uyer,  the  cases  are 
nnlike. 

:!(1.  The  flour  varleil  in  price,  and  there- 
furo  in  rniirUetiible  ((ualily,  and  in  all  snch 
cjiKes,  tlicre  Is  to  be  a  selection  bffore  the 
title  |)aHses. 

'I'his  opinion  mlKht  be  extended  and  per- 
linpH  made  more  intorestinK  by  an  analy- 
His  of  the  nnnieroue  cases  on  the  subject 
both  ani'ient  and  modern,  but  \vecont(.'nt 
onrselvps  witli  n  reference  to  some  few  of 
liieu),  witjiout  ntteini)tinK  more.  We 
li()l<l  that  upon  the  facts  found  by  the 
court,  sliowing    the    well  known    usase  of 


the  business,  it  Is  manifest  that  apoti  the 
presentation  and  acceptance  of  tliis  order, 
the  sale  was  completed,  nnri  the  subse- 
Huent  loss  of  tlour,  while  stored  at  th»- 
<icpot  must  fall  on  the  purchaser.  Steel 
Works  V.  Dewey,  :!7  Ohio  St.  IMJ:  Younjc 
V.  Miles,  2:;  Wis.  r.4:!:  ('loud  v.  Moorman, 
is  Iiid.  40;  llorr  v.  Barker,  f.  Cal.  4V.(; 
C'usliinn  V.  IJreed.  14  Allen,  370;  KImberly 
V.  I'atchin,  UtN.  Y.  rno;  Waldnin  v.CliaHe. 
37  .Maine,  414;  Chapman  v.  Sliepard.  :{S» 
("imn.  41:!;  U'hitehouse  v.  Frost.  12  Kast. 
(514;  also  notes  to  Hires  v.  Hurff.  17  &  IS 
Am.  Knw  lU'ff.  17.  Uil.  In  wlilrh  the  whole- 
subject  is  exhaustively  discussetl  and  the 
cases  reviewed. 

.1ud}i;nient   reversed,  and  coumc  reniaml- 
ed. 


I 


NICHOLSON   r.  TAYLOR. 


585 


NICH(5I.S0N  et  al  v.  TAYLOR  et  al. 

(31  Pa.  St.  128.) 

Supreme  Court  of  Pennsylvania.     1858. 

Action  on  the  cbkc  by  Ricluird  L.  Nich- 
<iIh<)ii  011(1  anotlier,  trmlinu  an  K.  L.  &  V..  L. 
NicliolHoii.  iiKiiinHl  DnvicI  H.  Taylor  (ind 
DtlierH,  trailinu  na  U.  U.  Taylor  *:  Co.,  (or 
breach  ot  eontract  to  deliver  certain  lum- 
ber. From  a  ju(l;?nieiit  for  clefenUantH, 
|/laintiffH  appeuleil.     Allirnied. 

.1.  Cook  LoiiKntreth,  for  plaintiffn  in  er- 
(or.     FnrHopH,  lor  defeiidantH  in  error. 

THOMPSON,  .1.— "When  the  lawful  form 
of  contractiiiK  in  pursued,"  said  .\lr.  .Iun- 
liee  Lowrie  in  W'iiiwlow.  Lanier  &  Co.  v. 
Leonard,  IL'  llarri.'<,  14,  "the  vestins  of  tlie 
litle  ahvayw  depends  upon  the  intention 
of  the  parties,  to  be  drawn  from  the  con- 
tract and  its  circumstances,"  ami  "it  is 
perfectly  legitimate  to  point  to  the  want 
of  measuring  ami  settinj^  apart  as  evi- 
dence, in  tlie  very  nature  of  the  transac- 
tion, that  it  was  not  intended  as  u  perfect 
Hale:"  Id.  lioius  further  in  this  <lirection 
than  mere  evidence.  C.  .1.  Gibson,  in  Haz- 
aril  V.  llamlii).  .'>  Watts,  201,  declared  that 
"where  nothini;  is  paid  or  delivered,  it  is 
ajrreed  on  all  hands  that  the  contract  is 
merely  executory."  This  is  true  of  such  a 
contract  standing  alone;  whether  taken 
as  an  a.xiom  or  an  evidence  merely,  the 
diffeience  is  in  terms  only.  No  intention 
is  to  be  drawn  from  a  contract  but  what 
It  expresses,  when  there  is  nothing  else  to 
manifest  it;  so  that  the  differenceof  terras 
in  statini;  the  [jroposition  leaves  the  rule 
the  same,  namely,  that  so  long  as  any- 
thinc  remains  to  be  done  as  lietwecn  the 
vendor  and  vendee,  for  the  pnri)ose  of  as- 
certainiiiK  the  amount  and  price  of  the 
article,  the  proi:erty  and  risk  remains  in 
the  vendor;  it  isnotclianged  :  Addison  on 
Contracts  L':.''.'.  I'l':?;  Hanson  v.  .Meyer,  (i 
East  til4;  Word  v.  Shaw,  7  Wend.  404 ; 
Lester,  Sennett  &  Co.  v.  .McDowell,  0  Hnr. 
ris  !)2;  Hutchinson  v.  Hunter,  7  KarrUii; 
Smyth  V.Craig,  :i  W.  &  S. -JO ;  Wiuslow. 
Lanier  &  Co.  v.  Leonard,  I'J  Harris  14; 
Nesbit  V.  I'urry.  1  Casey  L'Os.  This  rule  Is 
predicable  of  cases  «  here  no  actual  deliv- 
ery of  the  property  has  taken  place,  and 
it  is  sought  to  give  the  contract  the  effect 
of  changing  the  possession.  If  i)arties 
choose  to  deliver  property  without  the 
price  being  lixed,  the  [jropcrty  will  pass, 
iiecause  it  is  the  contract  an<l  intention  to 
pass  it.  Hut  we  have  to  «lo  with  a  case 
not  of  this  last  kind.  The  contract  is  as 
follows :  — 

"Sold  Messrs.  U.   L.  &   C.    L.    Nicholson, 


load  of  Pine  creek  luml>cr,  within  the 
neighborliood  of  ."jOOO  feet  of  plonk,  at 
?l."j..")0  and  e.Ypenses,  take  a  note  at  *! 
months,  with  interest.  U.  15.  Taylor  &  Co. 
Ntli  Mo.  11th." 

.\  I'ine  creek  load  of  lumlier.  it  would 
appear  contains  abr)ut  ."iO.ihmi  feet  l;oard 
measure,  a  portion  of  "iiieli  in  this  cune 
was  plank.  The  oral  testimony  left  tlie 
case  just  OS  it  found  it,  glvini;  nothing  in 
regard  t'>  the  intention  of  the  parties  but 
what  was  contained  in  it.  The  defendants 
lieli'w  refused  to  deliver  the  iiinitier.  alleg- 
ing that  they  were  mistaken  in  the 
amount  of  the  plank  contained  In  it — that 
in  place  of  .".OOO  there  were  10.000  fc-et,  and 
which  they  chargi'd  tliat  idaintiffs  knew  ; 
but  they  offered  to  deliver  the  load,  or  tlie 
anxinnt  of  it,  witli  .'lUiio  feet  of  plank  in  it. 
The  plaintiffs  n-fuseii  to  take  it.  Tills  lie- 
ing  tlie  situation  of  things  between  the 
parties,  and  the  plaintiffs  claiiuing  that 
the  property  passed  to  them,  brouglit  a 
special  action  on  tlie  case  og.'iiost  the  de- 
fendants in  which  they  liad  a  count  in 
trover.  On  the  trial  in  (he  district  court, 
the  point  was  reserved  as  to  whetlier  the 
property  passed  by  the  contract;  and  a 
verdict  w  IS  rendered  in  fav(jr  of  plain- 
tiffs for  $10.'i0..'i0,  its  entire  value,  .\fter. 
wards  tlie  court  entereil  juilgnient  for  tlie 
defendants  non  obstante  veredicto,  on  the 
point  reserved. 

Tlie  cose  stands  now  sniply  upon  the 
riglits  of  the  parties  as  created  liy  the 
written  contract.  .Applying  Hie  rule  al- 
ready laid  down,  "that  when  something 
remains  to  be  done  between  the  vendor 
and  vendee  for  tlie  purpose  of  ascertain- 
ing the  amount  and  price  of  the  article, 
the  property  and  risk  remains  in  the  ven- 
dor," to  this  case;  we  will  have  but  little 
difficulty  in  coming  to  a  conclusion.  Tlie 
lumber  was  to  lie  measured  before  the 
price  could  be  ascertained,  so  as  to  give 
the  si.x  months'  note  for  tiie  piiynient. 
Tills  was.  in  point  of  liil>or,  as  well  as  in 
other  particulars,  an  important  item  of 
the  transaction.  No  time  was  set  for  the 
measurement,  or  for  giving  tlie  note,  the 
Litter  licing  eonsei|ueiit  only  on  the  for- 
mer; all  showing  that  the  contract  wan 
but  executory  In  fact  and  intention.  The 
property  therefore  remained  in  the  vendor, 
and  the  plaintiffs  liad  no  legal  right  to 
recover  its  value  In  trover;  property  in 
the  plaintiffs  lieing  neressory  to  eiialde 
them  to  ilo  so.  Tliey  were  at  no  time  de 
barred  from  suing  for  damages  for  a 
brencii  of  the  contract.il  any  such  hinl 
occurred.  We  think  tlie  court  below  were 
right  in  thei.-  decision,  ami  this  Judg- 
ment must  bealHrmed. 

.Juilgmcnt  athrmed 


NIGHTINGALK  c.  ElsKM.YX. 


687 


NIGHTINGALE  et  al.  v.  EISEMAN  el  al. 

(■a  N.  E.  Rep.  47->,  121  N.  Y.  '^s.) 

Court  of  Appeals  of  New  York.      April  20,  1890. 

Appeal  from  supreme  court,  uoneral 
term,  first  departiiiLMit. 

Action  by  John  Niftlitinnnle  and  others 
ORahist  Moses  L.  Kiseniaii  ami  aiiotlicr. 
A  jii(ly:inent  entered  at  cirenit  in  favor  of 
defendantH,  and  disiiiiKHinK  the  conndaint, 
wan  .•illiinied  at  general  term,  and  plain- 
tiffs aucaia  appeal. 

Albridf^e  C.  Smith,  for  appellants.  The- 
odore Connoly,  for  respondents. 

Earl,  J.  On  the  4th  day  of  January, 
1880,  the  plaintiffs  were  manufacturers  of 
silk  at  Patterson,  N.  J.,  and  tlu;  defend- 
ants were  dealers  in  sill<  doinu'  business  in 
the  city  of  New  York.  On  tliat  day  an 
agent  of  the  plaintiffs,  who  was  eiiKnged 
in  selling  silk  lor  them  on  a  salary,  called 
upon  the  defendants  at  their  place  of  busi- 
ness, and  took  from  them  the  following 
order : 


Order  No.  11. 
Ship  bv  Ex. 
Hill  .Mnch. 
DapliL-atc  .N'o. 
Term,  6-lU  1  per 


Janaary  4tli.  188U. 
KlHiMnaa  &  Co., 
Grand  St.,  City. 


nt.  sperlnl. 


■>  pes  ,  Feb.  20. 

I    BO  pes.,  Mill.  let. 
Ualanee  before  Mcb.  16,  or 
earlier,  if  posuible. 
,  19-ln.  Snrali.  at  COc. 


Delivery, 

No.  750.    100  pc! 

Then  follows  a  statement  of thecolorsof 
the  different  pieces  to  bo  furnished.  It 
was  i)roved  tlmt  tlie  figures  "G-10  1,  "  fol- 
lowing the  word  "Term,"  meant  G  per 
ci'iit.  off  from  the  bill  for  tlie  silk,  1  per 
cent,  extra  discount,  and  tliesilk  to  bepaid 
for  10  days  after  delivery.  The  order  hav- 
ing been  sent  to  the  plaintiffs  by  tlieir 
agent,  on  the  next  day  they  wrote  to  the 
delciid;uits  that  they  had  receivetl  theiror- 
der,  and  would  endeavor  to  forward  the 
goods  "as  near  as  possible  to  the  time 
specilieil."  Aliout  the  l:jth  of  March  they 
sliipped  from  Patterson  to  tlie  defendants 
at  New  York  17  pieces  of  iho  silk,  and  nev- 
er thereafter  shipped  any  more;  and  tiiey 
commenced  thisaction  on  tliellith  of  April 
thereafter  to  recover  the  contract  price  of 
the  silk  delivered.  Tlie  defendants  refused 
payment  before  the  action  was  com- 
menced, and  defended  the  action  on  the 
ground  Hint  the  iilaintiffe  had  not  per- 
formed till  ir  contract. 

If  we  .issume  tliat  the  contract  as  made 
by  the  pliiinliffs"  agent  is  to  be  considered 
niodilied  by  tlieir  letter  to  the  defendants, 
so  tliat  they  were  bound  to  delivertliesilk 
only,  ns  near  as  possible  to  the  time  siiec- 
ilied  in  the  contract,  yet,  in  iiiiy  event,  the 
contract  bound  them  to  deliver  at  some 
time.  If  the  circunistances  weresuch  as  to 
excuse  the  plaintiffs  froni  delivery  at  the 
time  specilied  in  the  contract,  yet  they 
were  bound  to  deliver,  and  they  could  per- 
from  their  contract  only  by  delivering  the 
silk  at  some  time.  We  are  inclineil  to  the 
opinion  that  thecontract  should  be  treated 
as  an  entire  contract  to  ileiiver  the  inO 
pieces,  and  that  non,-  of  the  silk  was  to 
be  paiil  for  until  10  days  after  the  delivery 
of  the  whole.  But  if  such  be  not  its  proper 
construction,  and  the  defendants  were 
bound  to  pay  for  each  of  the  installments 


of  silk  specified  In  the  contract  within  10 
diiys  after  the  delivery  thereof,  the  plain- 
tiffs were  bound  to  makeat  least  one  com- 
plete delivery  before  they  conld  call  upon 
the  di-fendants  for  any  payment.  The  de- 
feiiilants  in  no  way,  so  fur  as  the  evidence 
discloses,  waived  complete  performance. 
The  17  pieces  of  silk  were  shipped  to  them 
from  I'atterson.  Tliey  hud  no  reason  to 
suppose  that  the  plaintiffs  intended  that 
shipment  as  a  compliance  with  their  con- 
tr.'iet  to  ship  L'.'i  pieces;  and  so  when  they 
rereived  the  17  jiieces  llicy  hud  the  right  to 
suppose  tliat  tiie.v  wouhl  he  followeil  by  a, 
further  shipment,  and  tliat  the  plaintiffH 
would  coiitiiiiie  to  perforin  their  contract. 
They  could,  therefore,  receive  the  17  piccea 
without  waiving  their  right  to  demand 
further  performance  before  they  could  be 
compelled  to  pay.  At  the  very  tirst  time 
■when  they  were  called  upon  tospeak,that 
JB,  when  they  were  asked  to  pay  for  the  17 
pieces,  they  refused  payment  on  the  ex- 
press ground  that  the  plaintiffs  had  not 
lierforiiied  their  contract,  and  promised 
that  they  would  pay  when  the  balance  of 
the  silk  was  received,  and  not  before. 
Therefore  wliether  we  regard  this  as  a  sin- 
gle contrtict,  by  which  the  plaintiffs  were 
bound  to  ileiiver  100  pieces  of  silk  before 
they  could  demand  any  payment,  or 
whether  we  considerthe  defendants  bound 
to  i)aj' for  each  delivery  specilied  In  tlie 
contruct,  we  tliink  the  plaintiffs  are  not 
entitled  to  recover;  and  for  this  conclu- 
sion the  authorities  in  this  state  an?  so 
abundant  that  they  need  not  be  cited. 

At  the  trial  the  counsel  for  the  pluintifis 
asked  one  of  tlieir  witnesses— the  agent 
who  took  the  order  from  the  defendants— 
the  following  questions:  "After  you  took 
this  order,  did  you  have  any  conversation 
with  the  defendants,  or  either  of  them, 
with  respwt  to  the  delivery  of  any  of  the 
goods  under  this  c<mtract'.'"  ".\ftertho 
taking  of  that  order,  what  conversation 
did  you  have  with  the  defendants  In  re- 
gard to  thedeliveryof  thelirst  installment 
of  pieces  referred  to  in  the  contract?" 
These  questions  were  objected  to  on  the 
part  of  the  defendants  ns  immaterial,  and 
were  excluded  by  tlie  court.  The  counsel 
did  not  disclose  what  heexpected  to  prove 
by  these  <iuestions.  and  it  is  impossible  to 
discover  what  competent  evidence  could 
have  been  elicited  by  them.  No  claim  was 
made  at  the  trial  that  thecontract  had  In 
any  way  been  changed,  nntl  the  court, 
therefore,  committed  no  errorin  excluding 
the  questions. 

One  of  the  plaintiffs,  ns  a  witness,  was 
asked  the  following  ipiestions  by  his  coun- 
sel:  "State  whether  or  not,  but  tor  tlie 
strike  of  the  laborers  employed  in  your 
mill,  vou  w:.Mil(l  liave  been  able  to  deliver 
thegooils  ordered  by  thedefenduntsat  the 
time  stati-d  in  the  or<ler,  or  within  a  rea- 
sonable time  thei-eufter.  "  ".State  whether 
or  not  the  strike  of  the  labon-rs  int«rfere«i 
with  the  delivervof  a  portion  of  the  goods 
ordered  bv  the  defendants  nt  the  time 
nameii  in  theordergiven  by  them."  These 
questions  wen>  objected  to  by  defenibints 
counsel  as  incompetent  and  immuterial. 
and  were  excluded.  No  complaint  was 
made  at  the  trial  that  the  plaintiffs  did 
not    deliver  the   17   pieces  of  silk   lu   time. 


588 


NIGHTINGALE  v.  EI8EMAN. 


The  sole  complaint  was  that  thoy  did  not 
deliver  even  the  25  pieces  requiri'd  for  the 
first  installment,  and  any  evidence  which 
could  have  been  elicited  by  these  questions 
could  show  no  justification  fora  failure  to 


nialve  such  delivery  at  some  time  before 
the  action  was  commenced,  and  therefore 
the  questions  were  properly  excluded. 
The  judgment  is  clearly  right,  and  sliould 
be  affirmed.     All  concur. 


NOBLE  0.  SMITH. 


Wl 


NOBLE  V.  SMITH  et  al. 

(2  Johns.  5'.) 

Supreme  Court  of  New  York.     Nov.  Term,  1800. 

This  was  an  action  of  troKi)asK,  for 
hri'iikins;  and  ciitcriiiK  the  cIdhi-  of  the 
pluintiff,  ciitlinji  down,  tdkinK:  juid  ciirr.v- 
inirmviiy  tlie  wheat  in  tlii'  Htraw,  which 
was  there  Ktaniliiit;,  and  oonveitinji  the 
Hainc  to  liiH  own  use. 

ThfcauNPwaH  tried  at  the  RenHselaer 
circuit,  in  Ma.v,  ISlMi,  hofore  Mr.  C'liief  Juh- 
tice  Kent.  The  pl.-iintiff  proved,  tliat  lie 
waH  ])iit  into  possesHion  of  the  loeiis  in 
quo  in  Marcli,  l.su."j,  liy  tlieslieriff  of  lienH- 
splaer  county,  li.v  virtue  of  a  writ  of  lia- 
bere  laeias  |)OHKe.s.sioneni,  isHued  on  a  judg- 
nient  in  ejectment  a/];ninst  one  liallett,  and 
that  liecontinned  in  possesHion  totlie  time 
of  tlie  trewpasH.  At  tlietinietlie  sheriff  put 
tlie  plr.intiff  in  possession,  he  did  not  re- 
move the  ^roods  out  of  the  house  of  Ilallelt. 
It  wasalscj  pi'oved,  that  thedefendanlH  and 
their  servants,  in  July,  ISO.'),  broke  and  en- 
tered the  same  close,  and  there  cut  down 
and  carried  away,  though  fcrhidden  by 
the  plaintiff's  overseer,  near  two  hundrecl 
bushels  of  wheat  in  the  straw.  A  witness 
for  tlie  defendants,  proved  that  liallett 
had  lived  on  the  farm  as  a  tenant  to  John 
Hill,  the  principal  of  the  plaintiff,  above 
two  years  before  the  plaintiff  was  ]iutinto 
possession.  That  two  of  the  defendants 
were  step-sons  of  liallett.  and  lived  in  his 
family.  That  after  liallett  was  dispos- 
sessed, he  was  sued,  and  taken  on  execu- 
tion for  rent  due  to  Hill.  The  witness  ap- 
plied to  the  (ilaintiff,  to  let  Mrs.  liallett 
liave  some  of  the  whe;it  then  fii'owin^  on 
the  premises,  for  seed;  and  the  plaintiff 
told  the  witness,  that  "he  wouhl  H:ive  the 
wheat  growiuK.  to  the  defendants,  the 
Smiths,  for  the  support  of  themselves  and 
Mrs.  Ilalli>tt,and  would  procnrea  written 
suneniler  to  be  drawn  up  for  Hallett  to 
execute."  The  Smiths,  afterwai'ils.  re- 
rjuested  the  plaintiff  to  j-ive  them  a  writ- 
iuK  for  the  wheat,  wliicli  the  plaintiff  re- 
fused to  do.  snvinsr.  "that  he  would  re- 
serve it  for  them,  if  he  should  <leniise  the 
premises  »o  any  other  person."  The 
Smiths  were  relations  of  Hill,  who  reipiest- 
ed  them  to  repair  the  feiie<'  in  the  antuMui, 
rouinl  the  Held  in  which  the  wheat  was 
KrowiuK.  .\iiolher  witness  stated,  that 
the  plaintiff,  in  October,  ISO."),  told  him, 
that  lie  had  >iiven  the  wheat  to  theSniiths, 
hut  that  he  had  revoked  the  fjilt,  on  ac- 
count of  some  offence  they  had  niven  him. 
.Something  was  said  of  a  coiulition  an- 
nexed to  the  fiift.  Imt  "hat  it  was, did  not 
clearly  appear. 

The  judge  charsed  the  jury,  that  there 
was  sullieient  evidence  of  a  valid  jrlft  of 
the  wheat,  and  which  was  not  revocable 
by  the  plaintirf.  The  plaintiff,  therefore, 
stibmitted  to  a  nonsuit. 

A  motion  was  now  made  to  set  aside 
the  nonsuit,  anil  for  ;i  new  trial  for  the 
tnisdiieetion  of  the  jud;ie. 

Henry  and  \'an  \'eclitoii,  for  plaintiff. 
Woiiii worth,  Atty.  Gen.,  for  defentlnnts. 

KK.NT,  ('.  J.  This  case  presents  the  f<d- 
lutving    questions.      1.  Can    property    in 


corn  Krowinjr,  be  transferred,  liyKittV  2. 
Is  there  here  the  refpilslte  evidence  of  such 
a  Kiff 

After  n  coDsidcrntion  of  this  case,  I  am 
satisfied,  that  the  opinion  which  1  gnve 
at  the  circuit,  upon  the  trial  of  this  cause, 
was  incorrect. 

Lord  Coke  is  reported  to  have  salil.  In 
Wortes  V.  Clifton.  (I  Uol.  Hep.  CI,)  that  l>y 
the  civil  law,  a  uift  of  Koods,  was  not 
valid,  without  delivery,  but  that  it  was 
otherwise,  by  our  law.  This  is  a  very 
inaccurate  dictum,  and  the  difference  be- 
tween the  two  systems,  is  directly  the  re- 
verse, liy  the  civil  law,  a  i:ift.  Inter  vivos, 
was  valid  and  bindinK.  without  d -livery; 
(Inst.  lib.  U.  tit.  7.  §  l'.  Code  lib.  s.  lit.  iA. 
1.  :!.  1.  :j.">.  §  .'il  but  at  common  law.lt  is  \ery 
clear,  from  the  general  current  of  aiitlnir- 
ities.thal  delivery  is  essential  to  niveeffect 
to  a  Kift.  I  Hracton.  de  acq.  reruni  doni. 
lib.!',  fo.  1.").  b.  10.  a.  I' lower'sCase,  Xoy.O". 
Smith  v.  Smitli.  2  Str.  ll.'i?.  (ine  .No.  9, 
.lenkins.  HI'.i.  2  Black.  Conini.  441. )  Inthe 
analo;;()Us  case,  also,  of  nifts,  causa  mor- 
tis, it  was  held,  by  Lord  Hard  w  icke.  in  the 
case  of  Ward  v.  Turner.  (J  Vesey.  .Sr.  4:11.) 
where  the  subject  umlerwent  a  very  full 
discussion,  that  a  flelivery  was  necessary 
[to  make  the;;ift  valid;  and.  aeconiiiiKly, 
I  that  a  delivery  of  receipts,  (or  south  seu 
annuities,  was  not  a  sullieient  delivery  to 
pass  these  annuities  by  that  speciesofKift. 

Delivery,  in  both  kinds  of  gift,  is  e(|ually 
re<iuisite.  on  grounds  of  public  policy  and 
convenience,  and  to  prevent  mistuke  and 
iin|>oHitiiin. 

If  dtliverj-  be  requisite,  there  was  none 
in  the  present  case.  The  land,  at  the  time 
of  the  nllesed  gilt,  was  in  p<»sessicin  of  oue 
Hallett,  and  not  of  any  of  the  defendantH, 
to  whom  The  gift  Is  said  to  have  been 
made:  and  befuic  tin-  wheat  was  ripe,  the 
plaintiff  recovered  the  possessbm  of  the 
land,  by  due  course  of  law.  Here  was  not 
even  an  attempt  at  a  symbolical  delivery, 
ami  giving  the  testimony  the  strongest 
possilile  construction,  in  favour  of  the  de- 
fendants, il  amounted  to  nothing  more 
than  saying.  I  give,  without  any  act  to 
enforce  it.  A  mere  symbidical  delivery, 
would  not,  I  up,>reliend,  ha  ve  been  sulli- 
eient. The  cases  in  which  the  delheryuf 
a  symbol  has  been  held  sullieient  topei"i"ct 
the  gift  were  those  in  which  it  was  I'on- 
sidered  as  equivalent  to  actual  delivery, 
as  the  delivery  of  a  key  of  a  trunk,  of  a 
room  or  wareliouse,  which  was  the  true 
and  eflectnal  way  of  obtaining  the  use 
and  command  of  the  sisbjit-t.  (Ward  v. 
Turner.  2  Vesey.  442.  44.1.  Tate  v.  Hllbert. 
4  lirown.  Ch.  280.  Toller's  law  of  Kxc.  Isl. 
2.)  1  tlo  not  know,  that  corn,  growing, 
is  susceptible  of  delivery,  in  any  other 
way.  than  by  putting  Hie  donn-  into  pos- 
scs.sion  of  the  soil:  but  it  is  not  necessary 
to  give  any  opinion,  at  present,  lo  that 
extent;  nor  do  t.'ie  court  mean  to  do  so. 
II  is  sntllcieut  to  say.  that  there  was  n<i 
evidence  of  delivery,  in  the  p'vsent  case, 
and.  that  to  presume  one.  we  must  go 
the  whc.le  length  of  the  exaniide,  given  in 
the  Koinaii  law.  where  the  buyer  Is  sup- 
posed to  take  possessloniif  a  liirgelmnmv- 
able  column,  bv  his  eyes  an  I  hisaffittlons. 
oculls  et  aflectu.     (Dig.   41,2.  I.   21.)     The 


592  NOBLE  v.  SMITH. 

courts  of  equity  seem  to  liave  adopted  tliel      The   oiiiniun    of   the  court,  tlieieforc,  is, 
true  rule  in  their   decisions,  on   the   dona-    that    tlie   nonsuit  be  set  aside,  and  a  new 
tio  Ciiusa  mortis,  in  wliicli  they  hold,  that    trial    awarded,    with   costs,  to   abide    the 
tlie   delivery  must   be   actual  and  real,  or,    event  of  the  suit, 
by  some  act,  clearly  equivalent.  '      New  trial  granted. 


N()KI{in(;t()\  c  wkkmit. 


595 


N()KKl.N(iT().\   V.    WKKillT   l-1   iil. 
(6   Sup.    Ct.   Uep.    12,   115  U.    S.    188.) 

Supremo  Court  of  tho  United  States.    Oct.   20. 

I.S.S0. 

In  error  to  tlio  rirciiit  court  of  the  Unit- 
ed StntcH  for  the  caHtern  disti'ict  of  I'l-nn- 
Hjivaniii. 

The  fiictH  fully  appear  in  the  followin}^ 
fltutcincnt  li.v  .Mr.  .lustice  (iKAY  : 

TIiIh  waH  an  action  of  aHHumpHit,  hrotisjht 
by  .\rthiir  Ndrrington,  a  cilizL'ti  of  (jri'at 
liritain,  trading  under  the  name  of  A. 
NorriMKton  &  Co.,  atiainHt  .laineH  A. 
Wright  and  otlipr.s,  citizcnH  of  Ucnnsyl- 
vania,  tradin^r  under  the  njuiit-  of  I'cter 
Wright  <*i  SonH,  upon  the  followini;  con- 
tract: '■  I'hiladclpliia,  .lanuary  Hi,  Issil. 
Sold  to  .MesHPH.  I'etcr  Wright  iV  Souh,  for 
ucconnt  of  A.  Norrinuton  it  Co.,  London: 
Five  thouHand  (.'i,(inil)  tonw  olil  T  iron  railH, 
for  shipment  from  a  ICuronean  port  or 
port.i,  at  the  rate  of  about  one  tliouHanil 
(1,OUO)  tons  per  month,  hej.;inninK  I'ehri-- 
ary,  IK.SO,  hut  whole  contract  to  he 
Hhip|)cd  before  Auf;nHt  1,  l.ssu.  at  forty-live 
clollarH{$f.").()0)  per  tonof  LMUO  llis.cuHtom- 
bouHO  weidht,  ex  whip  I'liiladelphia.  .Set- 
tlement, cash,  on  prenentation  of  billH  ac- 
coui|>aniPd  by  cuHtoni-houwe  certificate  of 
weijiht.  Sellers  to  notify  buyers  of  Hliip- 
nients  with  ves.sels'  namew  as  smjn  as 
known  by  them.  -.Sellers  not  to  be  com- 
pelled to  replace  any  parcel  lost  after 
shipment.  Sellers,  when  possil>le,  to  se- 
cure to  buyers  rijjht  to  name  discharKiny; 
berth  of  vessels  at  Philadelphia.  K(l- 
ward  .1.  HtlinR,  Metal  IJroker. " 

The  declaration  contained  three  counts. 
The  first  count  allef^ed  the  contract  to 
hove  been  for  the  sale  of  about  ri,(lU(i  tons 
of  T  iron  rails,  to  be  shipped  at  the  rate 
of  about  l.OlllI  tons  a  month,  be^iuniim  in 
February,  and  en<lin;;  in  .Inly,  1nn(I.  The 
second  count  set  forth  the  contr;icf  ver- 
batim. Kacli  of  these  two  counts  alle;;(Ml 
that  the  plaintiffs  in  February.  March, 
April,  .May.  .lune,  and  .Inly  shipped  the 
Koods  iit  the  rate  of  about  1. (Mill  tons  a 
month,  and  iiotKied  the  shipments  to  the 
defendants;  and  further  alleged  the  due 
arrival  of  the  (roods  at  I'liiladelphia.  the 
plaintiff's  readiness  to  deliver  the  jjoods 
and  bills  thereof,  with  cnstoin-honse  cer- 
tificates of  weight,  nccordiiii;  to  the  con- 
tract,and  the  defendants' refusal  toaccept 
tliem.  The  third  count  diflered  from  tlie 
second  only  in  nverrintr  that  40(1  tons  were 
sliii)peil  l)y  the  plaintiff  in  l'"ebruary  anil 
acceptcil  by  the  defendants,  and  that  the 
rest  was  slil\)ped  liy  the  plaintiffs,  at  the 
rate  of  about  l.Odi)  tons  a  month,  in 
March,  .\pril.  May.  .Mine,  and  .July.  The 
dcfeiKlants  pleadetl  non  assumpsit.  The 
material  facts  proved  at  the  trial  were  as 
follows: 

The  plaintiff  shippeil  from  varions  Kuro- 
l)enn  ports  400  tons  by  one  vessel  in  the 
last  part  <if  February,  *>s,")  tons  by  two 
vessels  in  March,  1,.')71  tons  by  live  vessels 
In  A|)ril,  HM)  tons  by  three  vessels  in  May, 
1,000  tons  by  two  vessels  in  June,  and  .'!00 
tons  by  one  vessel  In  .luly,  and  n<itilieil  to 
the  defendants  each  shipment.  The  de- 
fendants receive<l  and  paid  for  the  Feb- 
ruary shipment  upon  its  arrival  in  .March, 


and  in  .Vpiil  ^ave  diiecthMis  at  what 
wharves  the  .March  Hhi|)nients  sliould  l)e 
dischar^:ed  on  their  arrival,  but  on  .May 
14th.  about  the  time  of  the  arrival  of  the 
•March  shipments,  and  havinir  bei n  iheD 
for  the  first  time  informed  of  the  amountH 
shipped  in  Feliruary,  .March,  and  April. 
Kave  Fttin^  written  notice  that  they 
should  decline  to  accept  the  shipnientH 
made  in  .March  and  April,  beiause  none 
of  tlieni  were  in  accorilancc  with  the  con- 
tract;  and  in  answer  to  a  letter  from  hitu 
of  .May  l(;th,  wrote  him  on  .May  ITIIi.  »n 
tolhuvs:  "  We  are  ailvised  that  what  lias 
occuri-ed  <loes  not  amuunC  to  an  accept- 
ance of  the  iron  under  the  circumstances, 
and  the  terms  of  the  i-onlract.  You  had  a 
rijiht  to  <leliver  in  parcels,  and  we  lind  a 
richt  to  e.xpect  thc'  stipulated  quatitlty 
wonlil  be  delivered  until  the  time  was  ui» 
in  which  that  was  possible,  lioth  deliv- 
ering and  rcr'eivlnn  were  thus  far  condi- 
tional on  there  beinj;  thereafter  complete 
•lelivery  in  due  time  and  of  the  stiiiulated 
article.  On  the  assnm|)lion  that  this  time 
had  arrived,  and  that  you  had  ascertained 
that  yon  did  not  inteinl  to,  (»r  could  not, 
make  any  further  deliveries  for  the  Febru- 
ary and  Marc-h  shipments,  we  Rave  you 
the  notice  that  we  declined  occeptluR 
those  deliveries.  ,\s  to  .Vfiril,  It  Is  too 
plain,  we  suppose,  to  reipiire  any  remark. 
If  we  are  mistaken  as  to  onr  oblii;ation 
for  the  Februai'y  and  .March  shipments,  of 
course  we  must  abide  the  consequences; 
but  if  we  are  rijiht,  yon  have  not  per- 
formed your  contract,  as  you  certalidy 
have  not  foi-theApiil  shipments.  There 
is  then  the  very  serious  and  much  debated 
(ineslion,  as  we  are  advised,  whether  tin 
failure  to  mnke  the  stipulated  shipmentM 
in  Februjiry  or  .March  has  absolved  na 
from  the  contract.  If  it  does,  we  uf  course 
will  avail  ourselves  of  this  ncl vanta;re.  " 

On  .May  istli  Fttlnc  wrote  to  the  rlcfend- 
ants,  insisting  on  their  liability  for  both 
past  and  fut.ire  shipments,  and  sayiuK. 
amontf  other  thiiiiis:  "Iti  respect  to  the 
objection  that  there  had  not  been  a  com- 
plete delivery  in  due  time  of  the  stipulated 
article.  I  bei;  to  call  your  attention  to 
the  fact  that  while  the  contract  is  for  live 
thousand  tons,  it  expressly  stipulates 
that  deliveries  may  be  made  ilurin«  si.x 
mouths,  and  that  they  are  only  to  be  at 
the  rate  of  about  om'  thousand  tons  per 
month."  "  .\s  to  .\pril,  while  it  seems  to 
ivic  '  too  iilain  to  requii-e  any  remark.'  I  do 
not  see  ho«  it  can  seem  so  to  yon.  unless 
vou  intend  to  accept  the  rails.  If  you 
object  to  taking  all  three  shipments  made 
in  that  month,  I  shall  feel  authorized  to 
deliver  only  two  of  the  carjroes.orfor  that 
matter,  to"  make  the  delivery  of  precisely 
one  thousand  tons.  Hut  I  think  I  am  eii- 
titleil  to  knowdcliuilely  from  you  whether 
von  intend  to  reject  the  A|>rll  -hipments. 
and.  if  so,  upon  what  ground,  and  also 
wheMier  vou  are  decided  to  reject  the  re- 
nuiiiiintr  shipments  umler  the  contract. 
You  sav  In  your  last  paragraph  that  you 
shall  avail  yourselves  of  the  advantUKe. 
if  vou  are  "alisidved  from  the  contract: 
but,  as  yon  seem  to  l>e  In  donnt  whether 
vou  can  set  up  that  claim  or  not,  1  should 
like  to  know  detiuilely  what  is  your  Inten- 
tion." 


596 


NORRINGTON^  v.  WKIOnT. 


On  May  19tli  the  defeiidniitd  replied: 
"We  do  nut  read  the  contract  as  you  do. 
Wercad  it  as  stipulating  forniontldy ship- 
meiits  of  about  one  thousand  tons,  begrin- 
ning  in  February,  and  that  the  Mix  months' 
clause  is  to  secure  the  completion  of  what- 
ever had  fallen  short  in  the  five  months. 
As  to  the  nieanins  of  '  about,'  it  is  settled 
as  well  as  such  a  thin;^  can  be;  and  cer- 
tainly neither  the  February,  March,  nor 
April  shipments  are  within  the  limits.  As 
to  the  proposal  to  vary  the  notices  for 
April  shipments,  we  do  not  think  you  can 
do  this.  The  notice  of  the  shipments,  as 
Boon  as  known,  you  were  hound  to  irive, 
and  c'lnnot  afterwards  vary  it  if  they  do 
nut  conform  to  the  contract.  Our  rifiht 
to  be  notilied  immediately  that  the  ship- 
ments were  known  is  as  material  a 
provision  as  any  other,  nor  can  it  be 
changed  now  in  order  to  make  that  a 
performance  which  was  no  performance 
within  the  time  required."  "  Von  ask  us 
to  determine  whether  we  will  or  will  not 
object  to  receive  further  sbipnients  be- 
cause of  past  defaults.  We  tell  you  we 
will  if  we  arc  entitled  to  do  so,  and  will 
not  if  ■we  are  not  entitled  to  do  so.  We 
do  not  think  ynu  have  the  riuht  to  com- 
pel ns  to  decide  a  disputed  question  of  law 
to  relieve  you  from  the  risk  of  deciding  it 
yourself.  You  know  quite  as  well  as  we 
do  what  is  the  rule  and  its  uncertainty  of 
application."  On  June  ]Oth  Etting  offered 
to  tlie  defendants  the  alternative  of  deliv- 
ering to  them  one  thou.-^and  tons  strict 
measure  on  account  of  the  shipments  in 
April.  This  offer  they  immediately  de- 
clined. On  June  15th  Etting  wrote  to  the 
defendants  that  two  cargoes,  amounting 
to  2'2\  tons,  of  the  April  shipments,  and 
two  cargoes,  amounting  to  imO  tons,  of 
the  May  snipmeuts,  (designated  by  the 
names  of  the  vessels.)  had  been  erroneous- 
ly notified  to  them,  and  that  about  1)00 
tons  had  been  shipped  by  a  certain  other 
vessel  on  account  of  the  May  shipments. 
')n  the  same  day  the  defendants  i-eplied 
that  thenotification  as  to  April  shipments 
could  not  be  corrected  at  this  late  date, 
and  after  the  terms  of  the  contract  had 
long  since  been  broken.  From  the  date  of 
the  contract  to  the  time  of  its  rescission 
by  the  defendants,  the  market  priceof  such 
iron  was  lower  than  that  stipulated  in 
the  contract,  and  was  constantly  falling. 
After  the  arrival  of  the  cargoes,  and  their 
tender  and  refusal,  they  were  sold  by  Et- 
ting, with  the  consent  of  the  defendants, 
for  the   benefit  of  whom  it  might  concern. 

At  the  trial  the  plaintiff  contended  (1) 
that  under  thecoutract  hehad  six  months 
in  which  to  ship  the  5, OIK)  tons,  and  any 
deficiency  in  the  earlier  months  could  be 
made  up  subseiiuently,  i)rovided  that  the 
defendants  could  not  be  required  to  take 
more  than  1,000  tons  in  any  one  month; 
(■-')  that,  if  this  was  not  so,  the  contract 
w  a.s  a  divisible  contract,  and  the  remedy 
of  the  defendants  for  a  default  in  any 
month  was  not  by  rescission  of  the  whole 
contract,  t)ut  only  by  deduction  of  the 
damages  caused  by  the  delays  in  the  ship- 
ments on  the  i)art  of  the  plaintiff.  But 
the  court  instructed  the  jury  that  if  the 
defendants,  at  the  tiuie  of  accepting  the 
delivery  of  the  cargo  paid  foi',  had  no  no- 


tice of  the  failure  of  the  plaintiff  to  ship 
about  1,000  tons  inthemonthof  February, 
and  immediately  upon  learning  that  fact 
gave  notice  of  their  int.?ution  to  rescind, 
the  verdict  should  be  for  them.  The  plain- 
tiff excepted  to  this  instruction,  and,  after 
verdict  and  judgment  for  the  defendants, 
sued  out  this  writ  of  error. 

Samuel  Dickson  and  J.  C.  liullitt,  for 
plaintiff  in  error.  Richard  C.  Mc.Murtrie, 
for  defendants  in  error. 

Mr.  Justice  (iRAY,  after  stating  the  facts 
as  above,  delivered  the  opinion  of  the 
court. 

In  the  contracts  of  merchants,  time  is 
of  the  essence.  The  time  of  shipment  is 
the  usual  and  convenient  means  "of  fixing 
the  probable  time  of  arriv:il,  with  a  view 
of  providing  funds  to  pay  for  the  goods, 
or  of  iullilling  contracts  with  third  per- 
sons. A  statement  descriptive  of  the  sub- 
ject-matter, or  of  some  material  incident, 
such  as  the  time  or  place  of  shinuiont,  is 
ordinarily  to  be  regarded  as  a  warranty 
in  the  sense  in  which  that  term  is  used  it) 
insurance  and  maritime  law,  that  is  to 
say,  a  condition  precedent  upon  the  fail- 
uie  or  non-performance  of  which  the  party 
aggrieverl  maj'  repudiate  the  whole  con- 
tract. Behu  V.  Burness,  3  Best  &  S.  751 ; 
Bowes  V.  Shand,  2  App.  Cas.  455;  Lowber 
V.  Bangs,  2  Wall.  728;  Davison  v.  Von 
Lingen,  11:3  U.  S.  40,  a  !Sup.  Ct.  Rep.  alC. 

The  contractsued  on  is  a  single  contract 
for  the  sale  and  purchase  of  5,000  tons  of 
iron  rails,  shipped  from  a  European  port 
or  ports  for  Philadelphia.  The  subsidiary 
provisions  as  to  sliipping  in  different 
months,  and  as  to  paying  for  each  ship- 
tnent  upon  its  delivery,  do  not  split  up 
the  contract  into  as  many  contracts  as 
there  shall  be  shipments,  or  deli  vcries  of  so 
many  distinct  quantities  of  iron.  Mersey 
S.  &  1.  Co.  V.  Naylor,  9  App.  Cas.  434,  439. 
The  further  provision  that  the  sellers  shall 
not  be  compelled  to  replace  anj'i)arcel  lost 
after  shiptnent,  simply  reduces,  in  the 
event  of  such  a  loss,  tne  quantity  to  he  de- 
livered and  paid  for.  The  times  of  ship- 
ment, as  designated  in  the  contract,  are 
"at  the  rate  of  about  1,000  tons  per 
month,  heginning  February,  1880,  but 
whole  contract  to  he  shipped  before  Au- 
gust 1,  1880."  These  words  are  not  satis- 
fled  by  shi|)ping  one-sixth  I'art  of  the  5,000 
tons,  or  about  8;i'J  tons,  in  each  of  the  six 
months  which  begin  with  February  and 
eiiil  with  July.  But  they  require  about 
1,000  tons  to  be  shipped  in  eacli  of  the  five 
months  from  February  to  .Tune  inclusive, 
and  allow  no  more  than  slight  and  unim- 
portant deficiencies  in  the  shipments  dur- 
ing those  njimths  to  he  made  up  in  the 
month  of  July.  Thecoutract  is  not  one 
for  the  sale  of  a  specific  lot  of  goods,  iden- 
tified by  independent  circumstances, — such 
as  all  tho.se  deposited  in  a  certain  ware- 
house, or  to  be  shipped  in  a  particular 
vessel,  or  that  may  be  manufactured  by 
the  seller,  or  maybe  required  for  use  by 
the  buyer,  in  a  certain  mill, — in  which  case 
the  inentiim  of  the  quantity,  accompanied 
by  the  qualification  of  " about, "  or  "more 
or  less,"  is  regarded  as  a  mere  estimate  of 
the   probable   amount,  as  to  which    good 


i 


NOUItlNGTON'   0.  WI!IG!IT. 


5117 


(iiitli  iR  all  that  iH  reiiiiireil  of  the  [)iirty 
iimkiiiK  it.  I'lit  tlie  contnift  liefore  uh 
viiincK  within  the  ficniTjil  riih-:  "Wlien  no 
Hiich  iiiih|icii<l('nt  ciniiiiiKtiii.fcH  are  rc- 
fiTPcil  t').  (iiiil  the  (>iitC'iK''ii!<'Nt  iH  to  fiir- 
iiiwli  k<)0(1h  of  a  certain  i|iiaiity  oroliurue- 
ter  to  a  certain  ainiiiint,  tlie  <|iinntlty 
Hjieclfied  is  material,  and  governs  the  con- 
tract. The  addition  of  the  <|tialif.vint; 
words  'altoiit,'  'more  or  less,"  and  the 
like,  in  Hiich  cases,  is  only  for  the  pnrpofe 
of  i)roviilin}i  afrainst  accidental  variations 
ari.sinK  from  8li.!;ht  and  unimportant  ex- 
CCHHCH  or  tlcliciencie.s  in  number,  mefiunre, 
or  weight."  liruwley  v.  United  Slates.  '.Hj 
n.  .S.  KiS,  171,  17-'.  The  seller  is  Ixinnd  to 
deliver  the  quantity  stipulated,  and  has 
no  ri;ilit  either  to  compel  I  he  Imyer  to  ac- 
cept a  less  quantity,  or  to  rciiuire  him  to 
select  part  of  a  greater  qnantity;  and 
when  tlie  K'xxls '"'e  to  he  shipped  in  cer- 
tain proportions  monthly,  the  seller's  fiiil- 
ure  to  ship  the  recpiired  i|iiantity  in  the 
first  month  jiives  the  Ijuyerthe  same  riy;ht 
to  rescind  the  whole  contract  that  he 
would  have  had  if  it  had  heen  agreed 
that  all  the  };oods  should  he  delivered  at 
(inre. 

The  plaintiff,  ioHtead  of  shippinK  About 
I.IMK)  tons  in  February  and  about  l.OUO 
tons  in  March,  as  stipulated  in  the  con- 
tract, shippeii  only  400  tons  in  February, 
nud  >1N.".  tons  in  March,  llis  failure  to  ful- 
fill the  coiitriutoM  his  |iart  in  respect  to 
llieselirst  two  iTistallments  just  itie<l  the  de- 
fendants ill  rescinding  the  whole  contract, 
provideil  tli"y  distinctly  and  seasonably 
Ji.Nserted  the  ritrht  of  rescission.  The  ile- 
fendants,  immediately  after  the  arrival  of 
the  .March  sliiiiments,  and  as  soon  as  they 
knew  that  the  (piantities  wiiich  had  been 
sliipped  ill  February  and  in  .March  were 
less  than  the  contriiet  calleil  fur,  clearly 
and  positivel.v  asserted  the  rij^ht  to  re- 
scind, if  the  law  entitled  them  to  do  so. 
Their  previous  acceptance  of  the  sinjjrle 
car>;o  of  400  tc.ns  sliipped  in  February  was 
no  waiviT  of  this  ri^iht,  because  it  took 
Place  without  notice  or  means  of  knowl- 
edge that  the  stipulatecl  (juantity  had  not 
been  shipiied  in  February.  The  price  paid 
by  them  for  that  carj;o  beinu  above  the 
market  value,  the  plaintiff  suffered  no  in- 
jury by  the  omission  of  the  defendants  to 
return  the  iron;  and  no  reliance  was 
piMceil  on  that  omission  in  tliecorres[)ond- 
ence  bet  wei'ii  the  parties. 

Tlie  case  wholly  cliffers  from  that  of 
Lyon  V.  H(>rlrani,  I'O  How.  1-1'.),  in  wlii(di 
the  bu.Ncr  of  a  specific  lot  of  ^^oods  accept- 
ed and  used  part  of  them  with  full  means 
of  previously  ascertaining  whetlier  they 
conformed  to  the  contract.  The  plaintiff, 
denying  the  defendants'  riflht  to  rescind, 
and  assei'tinir  that  the  contract  was  still 
In  force,  was  bound  to  show  such  per- 
formance on  his  part  as  entitled  him  to 
dcmaiKl  perlormance  on  their  part,  and, 
haviuK  failed  to  do  so,  cai:iiot  maintain 
this  action. 

For  these  reasons  we  areol  opinion  that 
the  jud;;ment  below  should  be  aflirmed. 
15ut  MS  much  of  the  arKuim  nt  at  the  bar 
was  devoted  to  a  discussion  of  the  recent 
English  casis.  and  as  a  diversity  in  the 
law,  us  administered  on  the  two  sides  of 
the    Atluutii-,   concerniii);    the   interpreta- 


tion anil  effect  of  commercial  contracts  of 
this  kind,  is  ^rently  to  lie  deprecated,  it  is 
proper  to  arbl  that  upon  a  ciireful  e.xumi- 
nation  of  the  cases  referred  to  they  do  not 
aiipear  tons  to  establish  any  rule  IncuD- 
sistent  with  our  conclusion. 

In  the  leadiuK  ease  of  lloare  v.  ICeiinle, 
5  Hurl.  &  N.  10,  which  was  an  action  upon 
a  contract  of  sale  of  (107  tons  of  bar  irr.n, 
to  be  shipped  from  Sweden  in  .1  une,  .1  uly, 
AuKUst,  acid  September,  and  in  about 
equal  portions  each  month,  at  a  certain 
price  payable  on  delivery,  the  declaration 
alleued  that  the  plaintiffs  perlormed  all 
thin;;s  necessary  to  entitle  them  to  ha>e 
the  contract  pei-formed  by  the  defendants, 
and  were  ready  and  willing  to  perform 
the  contract  on  their  part,  and  in  June 
shipped  a  certain  portion  of  the  iron,  and 
within  a  reasonable  time  afterwards  of- 
fered to  deliver  to  the  defendants  the  por- 
tion soshipped,  but  the  defeiidunts  refused 
to  receive  it,  and  ^ave  notice  to  the  plain- 
tiffs that  they  would  not  accept  the  rest. 
The  defendants  pleaded  that  the  shipment 
in  .June  was  of  about  JO  tons  only,  anci 
that  the  plaintiffs  failed  to  complete  the 
shipment  for  that  month  according  to  the 
contract.  Urion  deuiurrer  t<i  the  pleas, 
it  was  argued  f<ir  the  plaintiffs  that  the 
shipment  of  abint  one-fourth  of  the  iron 
in  each  month  was  not  a  condition  pre- 
cedent, and  that  the  defenilants'  only 
remedy  for  a  failure  to  ship  thai  i|uantity 
was  by  a  cross-action  Itut  judgment 
was  uiven  for  tlie  defendants,  Chii-f  Haron 
I'ollock  sayin;;:  "The  defendants  refused 
to  accept  the  lirst  shipment,  because,  as 
tlu'y  say.  It  was  not  a  performance,  but  a 
breach  of  the  contrnct.  Where  parties 
have  made  an  OKreemeiit  for  themselves, 
the  courts  oiiKht  not  to  mnk  ■  another  for 
them.  Here  the.v  say  that,  in  the  events 
that  have  happened,  one-fourth  shall  be 
shipjied  in  each  month,  and  we  cannot  say 
that  they  meant  to  accept  any  otiier  quaii- 
tity.  At  the  outset  the  plaintiffs  failed  to 
tender  the  (|Uhntily  according  to  the  con- 
tract,—they  tendered  a  much  less  (]uan- 
tity.  The  defendants  had  a  risiht  to  say 
that  this  was  no  performance  of  the  con- 
trnct, and  they  were  no  more  bounil  to  ac- 
cept the  short  quantity  tlinn  if  a  sinnle 
delivery  had  been  contracted  lor.  There- 
fore the  pleas  are  an  answer  to  thea''tion.  " 
.')  Ilurl.&  .N'.  J->.  So  in  t'oddiii^ton  v.  I'ale- 
oloKO,  Ij.  H.  '2  Exch.  r.l.".,  while  there  was  s 
division  of  opinion  upon  the  question 
whet  her  a  con  tract  to  supply  i;oods,  "deliv- 
ering on  .\pril  17th,  comjdete  sth  May," 
bound  the  seller  to  b(>;in  deliveriiiK  on 
April  I7tli,  all  the  judges  a;rrceil  that  If  It 
did,  anil  the  sellei  made  no  delivery  on 
that  day,  the  buycrmlKlit  rescind  the  con- 
tract. 

On  the  other  linnd.  In  Simpson  v.  (^rip- 
pin.  L.  U.  S  Q.  n.  1-t,  under  a  contrnct  to 
supply  from  fi.OOO  to  S,000  tons  of  coal,  to 
lie  taken  by  the  biiver's  wajrons  from  the 
seller's  colliery  in  ecpial  monthly  quanti- 
ties for  I'J  months,  the  buyer  sent  wai;ons 
for  only  l."iO  tons  during  the  lirst  month: 
and  itWas  held  that  this  did  not  entlllo 
the  seller  toannul  thecontract  and  decline 
to  deliver  any  more  coal,  but  that  his  only 
reme.lv  was  by  an  action  for  dainH;;es. 
And  ill  Bramlt  v.  Law  rence.  I  ii.  U.  I)iv.a44, 


598 


NORRINOTOX  v.  WRIGHT. 


in  which  thecontract  was  for  the  piirchnse 
of  4,r)0()  (luarterw,  1(1  per  cent,  more  or  less. 
of   Russian    oats,   "shipment    l).v   steamer 
or  steamers  during  February."  or,  in  ease 
of  if-e  preventing  sliipuieat,  then    immedi- 
ately upon  the  opening  of  navigation. and 
1  139  quarters  were  shipped  byonesteamer 
in  time,  and  3,3()1   quarters    were   shipped 
too  Inte,  It  was  hehl    that   the   buyer  was 
bound  to  accept   the   1,139   quarters,   and 
was  liable  to  an  action  by  the  seller  for  re- 
fusing   to   accept    them.     Such    l)eing   the 
condition    of   tlie   law  of   England    as  de- 
clared  in    the   lower  courts,    the    case   of, 
Bowes  v.Shand.after  conflicting  decisions  | 
in  the  (jueen's  bench  division  and  the  court 
of  appeal,  was   finally  determined    by  the 
house  of  lords.     1  Q.   B.    Div.   -170;  2   Q.  B.  I 
Div.  11;-':  -'   App.   ("as.  4.">.     In    that   case,] 
two   contracts    were    made    in    I^ondon,  i 
each  for  the  sale   of  30i)   tons   of  "Madras 
rice,  to  be  shipped  at  Madras  or  coast   tor 
this  port  during  the  months   of   March  '",■  i 
April,  1874,  per  Rajah  of  Cochin.  "     The  (iOU  | 
tons  filled  S,200  bags,  of    which  7,120   bags  : 
were   nut   on    l>oard,   and    bills   of  lading  j 
Bignedin  February  ;  and  for  the  rest,  con 
Bisting  of  1,030  bau-s  put  on  board    in  Feb-; 
ruary,  and  no  in  March,  the  bill    of   lading 
was  signed  in  March.     At  the   trial   of   an 
action  by  the  seller  against   the  buyer  for 
refusing  to  accept  the  cargo,  evidence  was 
given  that  rice  shipped  In  Fel)ruary  would 
be   the  spring   crop,  and  quite  as  good  as 
rice  shipped    in  March    or   April.     Yet    the 
house  of  lords  held  that   the   action  could 
not  be  maintained,  because  the  meaning  of 
the   contract,  as   apparent   upon  its   face, 
was  that  all  the  rice  must  be  put  on  board 
in    March    and    Aiiril,  or   In   one   of    those 
mouths.     In   the  opinions   there   delivered 
tlie  general  principlesunderlying  this  class 
of    cases    are   most   clearly    and   satisfac- 
torily stated.    It  will  be  sufficient  tociuote 
a   few  passages   from    two  of   those  opin- 
ions. 

Lord  Chancellor  Cairns  said:  "It  does 
not  appear  to  me  to  be  a  (luestion  for 
your  lordships,  or  for  any  court,  to  con- 
sider whether  that  is  a  cimtract  which 
bears  upon  the  face  of  it  some  reason, 
8<ime  explanation,  why  it  was  ninde  in 
that  foim,  and  why  the  stipulation  is 
made  that  the  shipment  should  be  during 
these  particular  months.  It  is  a  mercan- 
tile contract,  and  merchants  are  not  in  the 
habit  of  placing  upon  their  contracts  stip- 
ulations to  which  they  do  not  attach  some 
value  and  importance."  2  App.  Cas.  403. 
"If  it  be  admitted  that  the  literal  mean- 
ing would  imply  that  the  whole  quantity 
must  be  i)Ut  oil  board  during  a  specified 
time,  it  Is  no  answer  to  that  literal  mean- 
ing.—it  is  no  observation  which  can  <lis- 
pose  of,  or  get  rid  of,  or  displace,  that  lit- 
eral meaiiiug,— tosay  that  it  imts  an  addi- 
tional burden  on  the  seller  without  a  cor- 
resi>onding  benefit  to  the  purchaser;  that 
is  a  matter  of  which  the  seller  and  pur- 
chaser are  the  best  judges.  Nor  is  it  aiiy 
reason  for  saying  that  it  would  be  a 
means  bv  which  purchasers,  without  any 
real  cause,  would  frequently  ol)tain  an  e.\- 
cuse  for  rejecting  contracts  when  prices 
had  dropped.  The  non-fulfillment  of  any 
term  in  any  contract  is  a   means  by  which 


a  purchaser  is  al)le  to  get  rid  of  the  con- 
tract when  prices  have  dropped;  but  that 
is  no  reason  why  a  term  which  is  fo;iiid  in 
a  contract  should  not  l)e  fulfilled."  Pages 
465,  4()r>.  "It  was  suggested  that  even  if 
the  construction  of  the  contract  be  as  I 
have  stated,  still  if  the  rice  was  not  put 
on  board  in  the  ijarticular  months,  that 
would  not  lie  a  reason  which  would  justify 
the  aiipellants  in  having  rejected  the  rice 
altogether,  lint  that  it  might  afford  a 
ground  for  a  cross-action  Ity  them  if  they 
could  show  thai  any  particular  damage 
resulted  to  them  from  the  rice  not  having 
been  [)Ut  on  board  in  the  months  in  ques- 
tion. V.y  lords,  I  cannot  think  that  there 
is  any  foundation  whatever  for  that  argu- 
ment. If  the  construction  of  the  contract 
1)6  as  I  have  said,  that  it  bears  that  the 
rice  is  to  be  put  on  board  in  the  mouths 
I  in  question,  that  is  part  of  the  description 
[of  the  subject-matter  of  what  is  sold. 
I  What  is  sold  is  not  :300tons  of  rice  in  gross 
1  or  in  general.  It  is  liOUtons  of  Ma<lras  rice 
i  to  be  put  on  board  at  Madras  during  the 
particular  months."  "The  plaintiff,  who 
I  sues  upon  that  contract,  has  not  launched 
!  hi.s  case  until  he  has  shown  that  he  has 
I  tendered  that  thing  which  has  been  con- 
tracted for,  and  if  he  is  unable  to  show 
that,  he  cannot  claim  any  damages  for 
the  non-fulfillment  of  the  contract." 
Pages  4()7,  408. 

Lord  Blackburn  said:  "If  the  descrip- 
tion of  the  article  tendered  is  different  in 
any  respect,  it  is  not  the  article  bargained 
for",  and  the  other  party  is  not  bound  to 
take  it.  I  think  in  this  case  what  the  par- 
ties bargained  for  was  rice,  shipped  at 
Madras  or  th.e  coast  of  Madras.  I'^pially 
good  rice  might  have  t)een  shipped  a  little 
to  the  north  or  a  little  to  the  south  of  the 
coast  of  Madras.  I  do  not  quite  know 
what  the  boundary  is.  and  probably 
equallvgood  rice  might  have  been  shipped 
In  February  as  was  shijjped  in  March,  or 
equally  good  rice  might  have  been  shipped 
in  Mayas  was  shipped  in  April,  and  I  dare 
say  equally  good  rice  might  have  been  i)ut 
on  hoard  another  ship  as  that  which  was 
put  on  board  the  Rajah  of  Cochin.  But 
the  parties  have  chosen,  for  i-easons  best 
known  to  themselves,  to  say:  We  bar- 
gain to  take  rice,  shipped  In  this  particu- 
lar region,  at  that  iiarticular  time,  on 
board  that  particular  shli>;  and  before 
the  defendants  can  be  compelled  to  take 
anything  in  fulfillment  of  that  contract  it 
must  be  shown  not  merely  that  it  is 
equally  good,  but  that  it  is  the  same  ar- 
ticleas  they  have  bargained  for, otherwise 
they  are  not  bcnind  to  take  it."  2  App. 
('as.  4S0,  4S1. 

Soon  after  that  decision  of  the  house  of 
lords,  twt)  cases  were  determined  in  the 
court  of  appeal.  In  Heuter  v.  Sala,  4  C.  P. 
DIv.  2:!9,  under  a  contract  for  the  sale  of 
"about  25  tons  (more or  less)  black  pepper. 


Oc  toiler 


and 


November  shipment,    from 


Penang  to  London,  the  name  of  the  vessel 
or  vessels,  marks,  and  full  particulars  to 
be  declared  to  the  buyer  in  writing  within 
00  days  from  date  of  bill  of  lading,"  the 
Keller"  within  the  GO  days,  declared  25  tons 
by  a  particular  vessel,  of  which  only  20 
tons  were   shipped    in  November,  and  five 


NORRIXGTOX  v.  WRIGHT. 


599 


tons  in  Dcccniher;  and  it  was  held  that 
the  buyer  liad  the  rljihl  to  refuse  to  receive 
any  part  of  the  pepper.  In  Honcl<  v.  Miil- 
ler,  7  U.  B.  Div.  92,  under  a  coritrnet  for 
the  sale  of  2,000  tons  of  pig-iron,  to  be  de- 
livered to  the  buyer  free  on  board  at  the 
niaker'H  wharf  "in  November,  or  equally 
over  November,  December,  and  .lanuary 
next,"  the  buyer  failed  to  take  any  iron 
in  N'ovenilier,  hut  demanded  delivery  of 
one-third  in  December  and  one-third  in 
.lanuiiry;  audit  was  held  that  the  seller 
was  juHtificil  in  refusins  to  deliver,  and  In 
civiHK  notice  to  the  buyer  that  he  consid- 
ered the  contract  as  canceled  by  the  buy- 
er's not  taking  any  iron  in  November. 

The  plaintiff  in  the  case  at  bar  greatly 
rclie<l  on  the  very  recent  decision  of  the 
liouoe  of  lords  in  Mersey  Co.  v.  Naylor,  !) 
App.  ('a8.4.'!4,  affirming  the  judgment  of  the 
court  of  appeal  In  0  il.  B.  Uiv.  ()4S,  and  fol- 
lowing the  decision  of  the  court  of  com- 
mon pleas  in  Freeth  v.  Burr,  L.  I'.  !)  C.  P. 
20S.  But  the  point  there  decided  was  that 
the  failure  of  the  buyer  to  pay  for  the  Hrst 
installment  of  the  goods  upon  delivery  does 
not,  utdcss  the  circumstances  evince  an  in- 
tention on  his  part  to  be  no  longei  bound 
by  the  con  tract,  en  title  the  seller  torcscijid 
the  contract,  and  to  decline  to  make  fur- 
ther ileliveriea  under  it.  And  tlie  grounds 
of  the  decision,  as  stated  by  Lor(l  Chan- 
cellor Selborne  in  moving  judgment  in  the 
house  of  lords,  are  )i|>plicable  only  to  the 
case  of  a  failure  of  the  buyer  to  pa.v  for, 
and  not  to  that  of  a  failure  of  the  seller  to 
deliver,  the  first  installment.  The  I,ord 
Chancellor  said  :  "The  contract  is  for  the 
nurcliase  of  .").000  tons  of  steel  blooms  of 
the  company's  manufacture;  therefore,  it 
is  one  contract  for  the  purchase  of  that 
(|uantity  of  steel  blooms.  No  doubt, 
there  are  subsidiary  terms  in  the  contract, 
as  to  the  time  of  (lelivciy, — 'delivery  1,000 
tons  monthly,  comencing  January  ne.xt.' 
— and  as  to  the  time  of  payment, — '  pa.v- 
ment  net  cash  within  three  days  after  re- 
ceipt of  shit)ping  ilncuments,' — but  that 
does  not  split  up  the  contract  into  as 
many  contracts  as  there  shall  be  deliveries 
for  the  purpose  of  so  many  distinct  (]uan- 
tities  of  iron.  It  is  (luile  consistent  with 
th<' natural  meatiing  of  the  contract  that 
it  is  to  be  vine  contract  for  the  (lurchase 
of  that  (piantity  of  iron  to  he  delivered  at 
those  times  and  in  that  manner,  and  for 
which  payment  is  so  to  l)e  made.  It  is 
perfectly  clear  that  no  particular  payment 
can  bo  a  condition  precedent  of  the  entire 
contract,  because  the  delivery  under  the 
contract  was  most  certainly  to  precede 
pnynient:  and  that  being  so,  I  do  not  see 
how,  without  express  words,  it  can  possi- 
lil.v  be  made  a  condition  precedent  to  the 
subsecjuent  fultillment  of  the  nnfultilled 
part  of  the  contract  by  the  delivery  of  the 
undelivered  stei'l."     '.)  App.  Cns.  4:!'.l. 

Moreover,  althuugl)  in  the  court  of  ap- 
peal dicta  were  uttered  tending  to  ap- 
I)rove  the  decisii>n  in  Simpson  v.  Crippin, 
and  to  disparage  the  decisions  in  Iloare  v. 
Rennie  and  llonck  v.  .Mulli-r,  above  cited, 
.vet  in  tlie  house  of  lords  Simpson  v.  Crip- 
pin was  not   even    referred    to.  and    Lord 


Blackburn,  who  had  given  the  leadlnK 
ofiirdon  in  that  chhc.  aH  well  as  Lord 
Bramwell,  who  had  delivered  the  lendlnK 
opinion  in  Honck  v.  .Muller,  distinguished 
Uoare  v.  Rennie  and  Honck  v.  .Muller  from 
the  case  In  judgment.     'J  .App.  Cas.4-t4,  44t>. 

Upon  a  review  of  the  Knglish  declsionH, 
the  rule  laid  <lown  in  the  earlier  cusch  of 
Iloare  v.  Hennie  and  ''oddlngton  v.  I'ale- 
ologo,  as  well  as  in  the  later  cases  of  Rou- 
ter V.  Sala  and  Honck  v.  Muller,  ajipean) 
to  us  to  be  supported  by  a  gnwiter  wel>cht 
of  authority  than  the  rule  stated  in  the 
intermediate  cases  of  Simpson  v.  Crlppln 
and  Brandt  v.  Lawrence,  and  to  accord 
better  with  the  general  principles  nflirmcd 
by  the  house  of  lorils  in  Bowes  v.  Shnnd, 
while  it  In  nowise  contravenes  the  deci- 
sion of  that  tribunal  in  .Mersey  Co.  v. 
Naylor.  In  this  country  there  Is  less  judi- 
cial authority  upon  tiie  question.  The 
two  cases  most  nearly  in  iioint  that  have 
come  to  our  notice  are  Hill  v.  Blake,  97  N. 
Y.21li,  which  accords  with  Howes  v.  Shund, 
and  King  Philip  Mills  v.  Slater,  I'J  R.  1.  S2, 
which  approves  and  fcdlows  Iloare  v. 
Rennie.  The  recent  cases  in  the  supreme 
court  of  Pennsylvania,  cited  at  the  bar, 
support  no  other  conclusion.  In  Shinn  v. 
Bodine,  f.O  Pa.  St.  1S2.  the  point  decided 
was  that  a  contract  for  the  purchase  of 
SOO  tons  of  coal  at  a  certain  price  per  ton. 
"conl  to  be  delivered  on  bo.ird  vessels  as 
sent  for  during  the  tnonths  of  .Vugust  and 
September,"  was  an  entire  contract,  under 
which  nothing  waf  paj-able  until  delivery 
of  the  whole,  and  therefore  the  seller  had 
no  right  to  rescind  the  contract  upon  a 
refusal  to  pay  for  one  cargo  before  that 
time.  In  Morgan  v.  McKee,  77  Pa.. St.  T2X, 
and  in  Scott  v.  Kittanning  Coal  Co.,y)  Pa. 
St.  2:J1,  the  buyer's  right  to  rescind  the 
whole  contract  upon  the  failure  of  the 
seller  to  deliver  one  installment  was  de- 
nied, only  liecause  that  right  had  been 
waived,  in  the  one  case  by  unreasonable 
delay  in  asserting  it,  ami  in  the  other  by 
having  accepted,  paid  for.  and  used  a  pre- 
vious installment  of  the  goods.  The  de- 
cision of  the  supreme  judicial  court  of 
Massachusetts  In  Winchester  v.  Newton, 
2  Allen,  402,  resembles  that  of  the  house  of 
lonis  in  Mersey  Co.  v.  Naylor. 

P.eing  of  opinion  that  the  plaintiff's  fail- 
ure to  make  such  shipments  in  Kebruary 
and  March  as  the  contract  required  pre- 
vents his  maintaining  this  action.  It  la 
needless  to  J  well  upf)n  the  further  objec- 
tion that  the  shipments  In  .\prll  did  not 
comply  with  the  contract,  because  the  de- 
fendants could  not  be  compelled  to  t«ke 
about  l,00(t  tons  out  of  the  largeri|uantlty 
shl|)ped  In  that  month,  and  the  plnlntlfT, 
after  once  designating  the  names  of  vom. 
sels,  08  the  contract  bound  him  to  do, 
could  not  substitute  other  vessels.  See 
lUnk  V.  Spence,  4  Camp-  •'!2".i;  Ciraves  v. 
I^egg,  0  E.xch.  7011;  Renter  v.  Sala,  above 
cited. 

Judgment  affirmed. 

The  CllIKF  JCSTICt:  was  not  present 
at  the  argument,  and  took  no  part  in  the 
docison  of  this  case. 


OLIVKK  0.  IIC.NTING. 


601 


OLIVKR  V.  HUNTING. 

(44  Ch.  Div.  205.) 

Chancery  Division.    Feb.  2,3,  ISOO. 

In  AuiiUHt,  18SM,  KmiiiH  Oliver,  n  ninr- 
ried  woiiiun,  poHHPHHeil  of  considerable  H.-p- 
unitecHtute,  noKotiated  wit!)  ji  Mr.  Hunt- 
inn  f<""  the  iiureliase  of  a  freehold  projjerty 
liiiown  aH  tile  Flettori  Manor  l!o\iHeeKtnte. 
Kveiiliially  »Uo  agreed  to  purchase  it  for 
i;j:!7-"i,  and  on  tlie  7th  of  Se])teinl)er,  ISHS, 
he  HiKned  tlie  foIlowiMK  <locnnient :  — 

"  .\iernoraiidiini  of  ternn  of  aKreenient 
heween  .Mr.  lliintinK  and  Mth.  Oliver: 
Price  ,i;2:J7.').  Vendor  to  make  K'>od  title. 
PurchaHor  to  [jayfor  her  own  conveyance. 
Fixtures  included  in  purchase.  Purchase 
to  be  HOttlcd  as  soon  aw  possible.  Pos- 
scRHi.in  on  L'.'itli  .Se|)teniber.  Deposit  to 
be  paid  on  the  lUtli.  " 

On  tlie  12th  of  September,  18S8,  Mr. 
Huntin;^  wrote  and  sent  a  letter  to  MrH. 
Oliver  in  the  following  words: 

"I  bi'K  to  aclinowledKe  receipt  of  cheijue 
value  £.n~)  on  account  of  the  purchase 
ijionej-  for  the  Fletton  Manor  House  es- 
tate." 

Mr.  Hunting;  havins  refused  to  com- 
plete, Mrs.  Oliver  commenced  this  action 
acninst  liim.cjaimintc  specific  performance 
of  the  contract  of  the  7th  of  iSepteinlier, 
InSS,  and  allcKiuK  in  her  stntemeiit  of 
claim  that  In  pursuance  of  the  said  con- 
tract she.  on  the  10th  of  September.  ISSS. 
paid  to  Mr.  Hunting;  the  sum  of  i£:!7.j  as  a 
deposit  and  in  part  payment  of  the  said 
purchase-,inoney,  and  sulunittinjr  that  the 
memorandum  of  theTthaml  the  letter  of 
the  l:.'th  of  September,  IssS, formed  a  valid 
contract  and  n  euflicient  memorandum 
within  the  statute  of  frauds. 

Mr.  Hunting,  by  his  statenipnt  of  de- 
fence, did  not  admit  any  of  the  allef;ations 
in  the  statement  of  claim,  and  relied  on  the 
statute  of  frauds.  Issue  was  joined.  This 
was  the  trial  of  the  action. 

Mrs.  Oliver  in  her  evidence  deposed  tliat 
she  sent  i he  cheiiue  of  .S;:!7.">,  mentioned  in 
the  letter  of  the  12th  of  September,  on  ac- 
count of  tlie  purchase-money  of  the  Flcttrin 
-Manor  House  estate.  It  was  jiurt  of  the 
.£2:575.  No  other  money  was  payable  by 
her  to  the  defendant.  The  £;J7.'>  was  the 
balance  that  Mr.  Hunting  t^as  to  receive, 
because  the  .E2000  was  to  be  paid  over  to  a 
iiiortjiaKee  of  the  property.  Her  solicitor, 
Mr.  Law,  was  going  to  lind  the  £2000  for 
her. 

Neville,  Q.  C,  and  DunninK,  for  plaintiff. 
WarmiiiKton,  Q.  C,  and  Swiafen  Kady, 
for  defendant. 

KKKKWICH,  J.:  The  elementary  prop- 
osition about  which  there  is  no  doubt  is 
this — the  nieniorancluni  to  be  signed  by 
the  parly  sought  to  be  charged,  so  as  to 
bring  a  particular  case  within  the  statute 
of  frauds,  need  not  be  on  one  piece  of 
paper,  nor  need  it  be  a  complete  docu- 
ment, signed  liy  the  party  at  one  and  the 
same  time.  It  may  be  contained  i;;  two 
or  more  pieces  of  pajier,  but  they  must 
be  BO  connected  that  you  can  read  them 
together,  so  as  to  form  one  iiieniorandiim 
of  the  contract  between    the   pailies.     Di- 


rectly you  get  beyond  that,  you  Ret  Into 
didiculty.  One  can  illustrate  that  in  a 
simple  manner.  An  inlendiiig  purchnMer 
accepts  an  offer  made  by  a  proponini:  ven- 
dor thus:  "  In  reply  to  your  letter  of  the 
]4tli  instant."  (^an  one  annex  to  that 
reply  the  letter  of  the  14th  instant?  Sure- 
ly one  cannot,  without  in<|uiring  what 
letter  it  is;  unless  tlie  purchaser  has,  with 
unusual  priiilciice,  completed  the  reference 
by  saying,  "  In  re|ily  to  your  letter  of  the 
14th  instant,  a  copy  of  which  Is  on  the 
other  Bide."  In  the  absence  of  any  such 
complete  evidence  as  that,  one  niiiMt  In- 
quire what  the  letter  of  the  14th  instant 
was,  because  non  constat,  it  may  have 
been  n  reference  to  any  one  ol  half  a  dozen 
different  letters;  and  so,  from  that  very 
simple  illustration,  one  can  go  tliroiiRli  a 
large  variety  of  more  complex  ones.  It 
is  not  for  me  to  say  that  the  old  rule  was 
better  or  worse  than  the  present  rule;  but 
that  it  was  a  different  rule,  not  wlthstond- 
iiig  the  criticisms  in  the  cases  which  Mr. 
.^'eville  has  given  me.  I  have  no  doubt.  I 
lake  the  old  rule  from  the  original  edition 
of  Lord  lUacUburn,  on  the  contract  of 
sale,  which  is  cited — I  have  not  the  orig- 
inal work  before  mo— by  Williams,  .1.,  ia 
Uailway  Co.  v.  Peek,'  where,  after  refer- 
ring to  Hinde  v.  Whitehouse,*  and  Ken- 
worthy  V.  Scholield.s  he  says:  "The  prin- 
ciple of  these  eases  seems  to  me  to  lie  well 
st;iteil  in  the  same  work  by  my  [Jrother 
lUackburn.  as  follows:  "If  the  contents  of 
the  signed  paper  themselves  make  refer- 
ence to  the  others  so  as  to  shew  \)y  In- 
ternal evidence  that  the  papers  refer  to 
each  other,  thoy  may  be  all  taken  to- 
gether as  one  memorandum  in  writing'" 
(as  in  the  case  which  I  have  meniioned 
of  a  letter  referring  to  a  previous  letter, 
of  which  the  copy  Is  anncxt'di;  "'but  it  it 
is  necessary,  in  order  to  connect  them,  to 
give  evideiice  of  the  Intention  of  the  par- 
ties that  they  should  be  connected,  shewn 
by  rircuin-itaiices  not  apparent  on  the 
face  of  the  writings,  the  memorandum  Is 
not  all  in  writing,  for  it  consists  partly 
of  the  contents  of  the  writings  and  partly 
of  the  ex|iression  of  an  intention  to  unite 
them,  anil  that  expression  is  not  in  writ- 
ing.'" The  oM  case  of  lioydell  v.  Driini- 
mond,'  and  some  other  cases,  might  lie 
consistent  with  that  rule;  but  certainly 
of  Intea  diflennt  rule  has  been  introduced, 
and  it  is  a  rule,  to  say  the  least,  consist- 
ent with  the  convenience  v)f  mankind,  be- 
cause if  you  were  to  exclude  partd  evi- 
dence to  explain  such  a  doubtful  reference 
as  "  the  letter  of  the  14th  inslant,"  or  It 
might  be  simply  "your  le'ter.  "  the  result 
niiglit  In  a  large  number  of  cases  l)e  gross 
injustice.  Now  1  take  it  to  be  quite  set- 
tled that  in  a  case  of  that  kind  you  moy 
i;ive  parol  evidence  to  shew  what  the  doc- 
ument referred  to  was.  I  take  It  that  yoD 
iiiMV  go  further  than  that,  and  that  if  you 
tinii  a  refcieiice  to  something,  which  may 
be  a  conversation,  or  may  be  a  written 
document,  you  may  give  evidence  to  shew 


'  E.  B.  &  E.  1001. 
«7  Eiist,  .">.">■*. 
•3  B.  &  f.  <Mh. 
Ml  Eiisl.  14'i 


602 


OLIVER  V.  HUNTING. 


wliether  it  wjis  a  conversation  or  a  writ- 
ten docLiment ;  am),  havinjj  proved  that 
it  was  a  written  document,  you  may  put 
tliat  written  dooiiinent  iu  evidence,  and 
S(»  connect  ic  witli  the  one  already  admit- 
ted or  proved.  ISo  far  there  is  no  ditti- 
cidty.  That  was  applied  in  the  case  of 
Hidgway  v.  Wharton,"  where  the  ques- 
tion was  on  tlie  intanin^  of  instructions 
which  did  not  by  any  means  necessarily 
point  to  a  written  document;  l)ut  later 
tlie  cases  linve  gone  furtlier  than  that, 
and  it  scenis  to  nie  that  Long  v.  Millar," 
followed  hy  Field,  J., in  Cave  v.  Hastings,'' 
does  estal)lish  a  very  much  larger  series 
of  exceptions.  In  Long  v.  Millar  I  pro- 
fess myself  rather  embarrassed  by  the 
judgment  of  Thesiger,  L.  J. — that  is  to 
say,  I  am  unableqiiiteto  understand  what 
he  means  by  the  passages  on  p.  4ri6,  which 
seem  to  me  rather  inconsistent;  but  see- 
ing that  I  have  the  juilgments  of  Bram- 
Wfll  and  Baggallay.  L.  J.  J.,  without  the 
slightest  doubt  or  embarrassment,  and 
that  Thesiger,  L.  J.,  concurred  in  their 
judgment,!  think  I  may  put  any  difficulty 
of  that  kind  aside.  Bramvvell,  li.  .1.,  gave 
a  judgment  which,  beyond  its  reference  to 
the  particular  case,  is  exceedingly  useful 
as  illustrating  this  branch  of  law;  be- 
cause he  gives  an  illustration  which  seems 
to  me  to  go  to  the  root  of  the  matter. 
The  illustration  he  gives  is  thisS;  "Sup- 
pose tliat  A.  writes  to  B.,  saying  that  he 
will  give  £10(10  for  B.'s  estate,  and  at  the 
same  time  states  the  terms  in  detail,  and 
suppose  that  B.  simply  writes  back  in  re- 
turn, '  I  accept  your  offer.'  In  that  case 
there  may  be  an»identilication  of  the  doc- 
uments by  parol  evidence,  and  it  may  be 
shewn  that  the  offer  alluded  to  by  B.  is 
that  made  by  A.,  without  infringing  the 
statute  of  frauds,  sect.  4,  wliich  rc(inires 
a  note  or  memorandum  in  writing."  If 
that  is  sound,  which  I  tal<e  it  to  be,  ac- 
cording to  other  cases,  and  according  to 
the  convictions  of  judges  in  older  cases 
which  are  introduced  into  the  old  law,  it 
is  (litticult,  perhaps,  to  say  where  parol 
evidence  is  to  stop;  but  substantially  it 
never  stops  short  of  this,  tliat  wherever 
parol  evidence  is  recjuired  to  connect  two 
writtfn  documents  together,  then  that 
parol  evidence  is  admissible.  You  are  en- 
titled to  rely  upijn  a  written  document, 
whicli  requires  exiilanation.  Perhaps  tlie 
real  principle  upon  which  that  is  based  is, 
tl)at  you  are  always  entitled  in  regariling 
the  construction  and  meaning  of  a  writ- 
ten document  to  inquire  into  the  circum- 
stances under  which  it  was  written,  nit 
in  order  to  find  an  interpretation  by  the 
writer  of  the   language,  IJut   to   ascertain 


«6H.  L.  C.  23S. 
•4  C.  P.  D.  450. 
'7  Q.  B.  D.  125. 
•Long  V.  Millar,  4  C.  P.  D.  4.'4. 


from  the  surrounding  facts  and  circum- 
stances with  reference  to  what,  and  with 
what  intent,  it  must  have  been  written. 
I  think  myself  that  must  be  the  principle 
on  wliich  parol  evidence  of  this  kiiid  is 
admitted.  Turning  to  the  case  before  me, 
I  tind  a  letter  of  the  TJtli  of  September, 
IS^SH,  written  by  the  defendant  to  Mrs. 
Oliver;  and  in  that  he  says:  "I  beg  to 
acknowledge  receipt  of  cheque,  value  £375, 
on  account  of  the  purchase-money  for  the 
Fletton  Manor  House  estate,  for  which  I 
thank  you.'"  I  have  two  things  here  per- 
fectly clear,  that  there  is  a  property  called 
Fletton  Manor  House  estate,  wliich  con- 
stitutes the  subject  of  a  purchase,  and, 
therefore,  the  subject  of  a  sale.  I  have 
also  that  £37.j  is  part  of  the  purchase- 
money  for  that  house;  but,  beyond  that, 
I  have  no  terms  of  a  contract.  I  am  enti- 
tled to  consider  the  circumstances  under 
which  the  letter  was  written,  in  order  to 
give  any  meaning  that  1  properly  can  to 
it— not  to  add  terms  to  it,  but  to  tind  out 
what  the  meaning  necessarily  must  be, 
having  regard  to  the  facts  and  circum- 
stances—  and,  having  got  the  evidence 
which  I  have  in  this  case,  the  conclusion  is 
inevitable  that  it  refers  to  a  previous 
memorandum  of  terms  of  agreement  un- 
der which  Mrs.  Oliver  becomes  the  pur- 
chaser of  this  particular  projierty  for  the 
price  of  £2375,  on  account  of  which  the 
cheque  for  £375  was  sent.  Having  got 
that  evidence  in,  having  got  the  connec- 
tion between  the  two  documents,  I  have 
then  enough  to  enable  me  to  read  the  two 
documents  together,  and,  reading  them 
together,  I  have  a  distinct  memorandum 
of  contract,  specifying  all  the  terms,  the 
second  one  supi)lying  what  the  first  one 
omitted  to  give,  namely,  singularly 
enough,  the  property  which  was  intended 
to  be  purehahcd  and  sold.  That  being  so, 
the  objection  that  there  is  no  memoran- 
dum within  tlie  statute  of  frauds  fails. 

I  have  not  referred  to  the  late  case  of 
Studds  V.  Watson,"  before  Mc.  Justice 
North,  because  1  am  not  quite  sure  how 
far  that  learned  judgeintended  to  go.  If  I 
1  am  right  in  my  view  of  his  judgment,  that 
he  only  allowed  the  parol  agreement  to 
be  proved  to  see  whether  it  connected  the 
two  written  docuuients,  and  then,  having 
got  it  in  evidence,  found  that  it  did,  and 
so  was  able  to  connect  the  two  docu- 
ments—if  that  is  the  right  view,  which  I 
believe  it  to  be,  of  what  lie  intended — then 
it  really  follows  Long  v.  Millar, i"  and 
Cave  V.  Hastings, 11  to  both  of  which  he 
referred  in  his  judgment. 

Under  these  circumstances,  I  think  the 
plaintiff  is  entitled  to  judgment  for  spe- 
cific performance,  and,  of  course,  to  the 
costs  of  the  action. 


'28  Ch.  D.  305. 
'»4  C.  P.  D.  450. 
"  7  Q.  B.  D.  125. 


Olt.MliOD  V.  IIUTII. 


605 


ORMROD  V.  UUTH  ut  aL 

(14  Mees.  &  W.  Gol.) 

Courts  of  Exchequer  Chamber.    June  18  &  Ifl, 
1845. 

In  error  on  a  hill  of  exceptions  from  the 
c-ourt  of  o.xclii'iincr. 

(,'iiHu  for  a  IuIhp  representation.  Tlie 
(Ipc-laration  Htated,  that  the  plaintirr,  to 
wit,  on,  iVrc,  at  the  riMitieHt  ol  the  (tcfeiid- 
ants,  hjM-Kaiiieil  with  the  (lefendiintx  t(j 
liny  of  thcni  divers,  to  wit.  142  liales  of 
eoltoii  ol  (hem  (he  defendaiitK.  and  f(>r 
a  eertaiii  price,  (o  wit,  (lie  price  or  Kiiin  of 
t:iii4(i  l.')H.;  and  the  defentlant.s  then,  dur- 
ing such  liart;aiiiiiiK.  falnely,  fraudulently, 
and  deceitfully  e.xhil)ited  to  the  plaintiff 
(livern,  to  wit,  142  parcelH  of  cotton,  and 
falsely,  fraudulently,  and  deceitfully  repre- 
sented and  held  out  to  the  plaintiff,  and 
Midiiccd  the  [)laintiff  to  helieve,  that  the 
satne  parcels  Weri^  samples  of  the  said 
cotton  8o  bargained  for,  and  were  fair 
samples  theieof,  and  that  the  said  cotton 
was  e(iual  to  and  of  the  same  description 
with,  and  of  e(|ual  ami  like  quality  with 
the  said  parcels  ho  exiiiliited  as  ufcjresaid  ; 
and  thereupon  the  plaintiff,  heretofore,  to 
wit.  on  tlieBumeday  and  year,  conhdin;; 
in  and  r.->IyinK  upon  the  said  i)arcels  ao  ex- 
hil)itei|.  and  the  said  repri'sentations  and 
indncemeuts  of  the  defendants  so  made  as 
aforesaid,  at  the  rc(iuest  of  the  defend- 
ants, was  induced  to  buy  and  did  buy  the 
said  cotton  of  the  dclenilants,  at  and  for 
thesaid  larne  price  orsnmof,  to  wit,  tllijti 
1.5s.,  and  afterwards,  to  wit,  on  the  same 
day  and  year,  |)ald  to  the  defendants  the 
same  sum  of  money  for  the  same;  where- 
as, in  truth  and  in  fact,  at  the  times  of  tlie 
said  IxirKiiinitin  and  sale  by  the  defend- 
ants, the  said  parcels  of  cotton  were  not 
fair  sainples,  nor  wore  they  samples  of  the 
said  cotton  so  baruained  for.  nor  was  the 
said  cotton  ecpial  to  and  of  the  same 
description  with,  and  of  ecjual  and  like 
quality  with  thesaid  parcels,  l)ut  of  in- 
ferior and  much  worse  description  and 
quality,  and  of  much  less  value.  .Vnd  the 
plaintiff  in  fact  says,  that  the  defendants, 
by  means  of  tlie  premises,  on  the  day  and 
year  aforesaid,  falsely  and  fraudulently 
deceived  the  plaintiff  in  the  sale  of  the  said 
cotton  as  aforesaid,  by  means  whereof. 
&c. 

Fleas,  first,  not  K'lilty  :  secondly,  that 
the  plaintiff  was  not  induced  to  buy,  nor 
did  lie  buy  thesaid  cotton  or  any  part 
thereof,  niodo  et  forma. 

The  rei)lica(lon  took  issue  upon  both 
pleas. 

At  the  trial,  before  Coltnian,  .J.,  at  the 
I<iverpool  sprint;  assizes,  ls4;i,  it  niipeareil 
that  (lie  plaintiff,  a  cotton-spinner,  had. 
thidiiL;!)  a  broker,  bought  several  bales 
of  cotton  from  the  defendants,  who  were 
merchants  at  Liverpool.  The  usual 
method  of  ptirchasinn  cotton  l.-i  by  bro- 
kers. The  selliiiK  broker  always  has  sain- 
I)lcs  by  wliicli  he  sells.  Inspection  from 
the  bulk  is  quite  unusual  in  iiurchases  of 
cotton.  The  samples  are  drawn  from  a 
silt  in  the  bale;  and  if  any  part  of  the 
bole  proves  to  lie  of  an  Inferior  ((uality  to 
that  found  in  the  slit,  it  is  s;ii4l  to  be  false- 
ly packed,  and  is  i^nmerchnntable  on  (hat 


I  account.  It  is  usual  for  the  buyinK 
broker  to  have  sumplesdrawn  by  his  own 
people  from  the  bale,  which  redrawn  sam- 
ples lie  compares  with  thosi-  by  whjcli  be 
has  bouKlit.  In  the  present  cose,  forty-five 
of  the  liales  which  were  purclnised  by  the 
plaintiff  were  found  to  be  falsely  packed. 
Cotton  is  packed  in  layers,  ho  that  the 
edKcs  are  visilde  only  at  the  top  and  bot- 
tom, and  alon^  the  narrow  side.  From 
the  way  in  which  the  cott<»n  Is  packeil, 
you  Can  only  take  the  sainide  from  the 
louK  narrow  slile.  In  this  case  there  were 
two,  tiiiee,  or  more  layers  of  Rood  cot- 
ton like  (he  sample;  but  In  the  inner  part 
the  cotton  was  liad :  In  some  instances 
there  was  not  more  than  one  layer  of 
«ood,  and  the  rest  bud.  A  witness  stated 
that  this  must  have  been  done  by  de- 
si«ii.  aiHl  that  the  bales  must  have  been 
falsely  packed  when  purchased;  but 
there  was  no  evidence  to  show  that  the 
ilefendanis  were  co;.'nizant  of  the  fraud. 
It  was  proved  that  the  cotton  had  come 
strait-lit  from  the  ship  (o  the  defendants' 
warehouse,  and  they  were  the  consiRnees; 
but  whether  (hey  were  (he  coiislKiiees  oti 
their  own  account  or  for  othei-s  did  not 
ap|)enr.  Upon  this  evidence,  the  defend- 
ants'counsel  insisteii  (hut  there  was  no 
case  to  ;;o  to  (liejnrv  on  which  they  could 
firiil  for  the  plaintiff  on  the  llrst  issue,  in- 
usinuch  as  neither  the  defeudnnts  nur 
their  brokers  were  proved  to  have  had 
any  knowledge  of  the  ulleRed  misrepre- 
sentation belns  false,  or  of  the  false  pack- 
ing, or  to  have  acted  In  any  respect 
auainst  Rood  faith  or  with  any  fraudu- 
lent purpose.  The  plaintiff's  counsel,  on 
the  other  hand,  maintained,  that  the  d^- 
liver.v  of  samples  not  correspondint;  with 
the  bulk,  was  a  false  representation  of 
the  quality  of  the  cotton,  which  must  be 
considereil  in  point  of  la  w  as  fraudulent, 
as  beiu);  the  statement  of  a  fact  which  the 
party  makiu);  it  did  not  know  to  be  (rue. 
anil  which  in  fact  was  not  (rue,  and 
which  induced  (In-  buyer  (n  make  (he  pur- 
chase. The  learned  judtte  directed  (he 
jury,  that,  unless  they  could  see  urounds 
for  Inferrintr  that  (he  defendniUs  or  their 
brokers  were  ac(|uainteil  with  the  fraud 
that  had  lieen  practised  in  (he  packing,  or 
had  acted  in  the  transaction  auainst 
flood  faith  or  with  some  fraudulent  pur- 
pose, the  defendants  were  enddeil  (o  the 
verdict  on  the  first  issue:  whereupon  the 
plaintiff's  counsel  excepted  (o  (lie  direc- 
tion of  (he  learned  jmlne.  and  insisted 
that  proof  of  (he  defendants  or  their  bro- 
kers beliiK  acqnainteil  with  the  fraud  that 
had  been  iiractised  In  the  packlni;.  or  of 
their  hiiviiiK  acted  airalns(  (jooil  faUh.  or 
wi(h  some  fraudnhiit  purpose,  was  not 
necessary  to  be  Klven  liy  liim  on  that 
issue,  and  tendered  a  bill  of  exceptions  ac- 
cordinuly.  The  jury  found  a  verdict  for 
(he  defendants  on  the  first  Issue,  ami  were 
discharged  by  consent  as  to  the  other 
Issues. 

.\  writ   of  error   havluK    been   brouRlit, 
the  case  was  now  ar;;ned  liy 

Cowlintr.  for   plaintiff  In  error.     Cromp- 
ton,  for  defendant  in  error. 

TINOAL,  <\.I.     We  think   the  direction 
of  the  learned  judjie  was  perfectly  correct. 


606 


ORMKOD  V.  IIUTH. 


The  action  is  brought  tor  a  false  anrt 
fraudulent  representation,  alleged  to  have 
been  made  b.y  the  defendants,  on  the  Kale 
of  certain  cotton  to  the  jilaintiffs,  that 
the  cotton  was  of  the  same  description, 
and  of  equal  and  like  <]ualit.v  with  the 
sample  by  them  exhibited,  whereas  in  fact 
it  was  not:  tlie  action  not  being  brought 
upon  an  exi)ress  warranty,  nor  any  ex- 
press allegntion  being  laid  in  the  declara- 
tion, that  thedefendants  knew  at  the  time 
that  the  bulk  of  the  cotton  did  not  e(iual 
in  description  or  quality  the  sample  wtiich 
had  been  so  exhibited. 

Upon  the  trial,  the  learned  judge  direct- 
ed the  jury,  that,  unless  they  could  infer 
that  the  defendants  or  their  brokers  were 
acquainted  with  the  fraud  that  had  been 
practised  in  the  packing,  or  had  acted  in 
the  transaction  against  good  faith,  or 
with  some  fraudulent  purpose,  the  defend- 
ants were  entitled  to  the  verdict;  and  we 
think  this  the  proper  direction. 

The  rule  which  is  to  be  derived  from  all 
the  cases  appears  to  us  to  be,  that  where, 
upon  the  sale  of  goods,  the  purchaser  is 
satisfied  without  requiring  a  warranty, 
(which  is  a  matter  for  hi.=  own  considera- 
tion,) he  cannot  recover  upon  a  mere  rep- 
resentation  of  the  quality   by   the   seller, 


unless  he  can  show  that  the  representa- 
tion was  bottomed  in  fraud.  If,  indeed, 
the  representation  was  false  to  the  knowl- 
edge of  the  party  making  it,  this  would 
in  general  be  conelofiive  evidence  of  fraud  ; 
but  if  the  representation  was  honestly 
made,  and  believed  at  the  time  to  be  true 
by  the  party  making  it,  though  not  true 
in  point  of  fact,  we  think  this  does  not 
amount  to  fraud  in  law,  but  that  the  rule 
of  caveat  emptor  apjilies,  and  the  repre- 
sentation itself  does  not  furnish  a  ground 
of  action.  And  although  the  cases  may, 
in  appearance,  raise  some  difference  as  to 
the  effect  of  a  false  assertion  or  represen- 
tation of  title  in  the  seller, it  will  bcfound, 
on  examination,  that  in  each  of  those 
cases  there  was  either  an  assertion  of  a 
title  embodied  in  the  contract,  or  a  repre- 
sentation of  title  which  was  false  to  the 
knowledge  of  the  seller. 

The  rule  we  have  drawn  from  the  cases 
appears  to  us  to  be  supi)orted  so  clearly 
by  the  early,  as  well  as  the  more  recent 
decisions,  that  we  think  it  unnecessary  to 
bring  them  forward  in  review;  but  satisfy 
ourselves  with  saying,  that  the  exception 
must  be  disallowed,  and  the  judgment  of 
the  court  of  exchequer  affirmed. 

Judgment  afhrraed. 


PAGE  V.  MORGAN. 


609 


PAtiE  V.  MORGAN. 

(15  Q.  B.  Uiv.  32S.) 

Court  of  Appeal.    June  10,  1S85. 

Appeal  from  the  jiid^inent  of  the  qiiei-n'H 
lieiK'l)  tlivinioa  refuHlii^  nn  apiilii-atioii  for 
a  new  trial,  or  to  enter  jiiilKiiient  for  the 
(lelenilaiit. 

Till-  action  wiiH  for  the  price  of  wheat, 
or  in  tlif  alternative  for  daniaKes  for  non- 
aice|itaaco  of  the  wheat. 

Tlic  statement  of  defence  denied  the  con- 
tract of  [jnrchaHC,  allefie<l  that  the  wheat 
was  Hold  by  8aini)]e,  and  the  liulkwaonot 
eijiial  to  the  Huniple,  and  Het  up  non-coui- 
jiliance  with  the  statute  of  frandH. 

The  case  was  tried  Ix'fore  ISnlwer,  Q.  C, 
Hittinp  as  conirnisHioner  at  tlie  riielmBford 
smnnier  assizes,  iHHi,  when  the  facts  were 
as  follows: — 

The  defendant,  H  miller,  bought  of  the 
plaintiff  bv  oral  contract  thron;;li  the 
plaintiffs  anent  eijjhl.v-eiiiht  quarters  of 
wheat.  The  sale  was  by  sample.  The 
wheat  was  shipped  by  the  plain tiff'saiient 
on  a  liartie  for  carriage  to  the  defendajil's 
mill,  which  was  upon  a  na\  livable  canal. 
The  liarRe  ai-rived  at  the  mill  on  the  even- 
inn  of  'I'uesday  the  L'.'.th  of  March,  and  at 
S  o'clock  on  the  mornint;  of  the  itith  some 
of  the  sacks  containing:  the  wheat  were, 
by  direction  of  the  defendant's  foreman, 
hoisted  uj)  out  of  the  barRe  on  to  the  mill 
andeAamined  by  him.  After  twenty-four 
sHclis  liad  been  hoisted  up  and  examined 
the  foreman  sent  for  the  tlefcndant,  who 
came  to  the  mill  and  inspected  the  con- 
tents of  the  sacks  already  delivered,  and 
ordered  some  more  t(j  be  sent  up  for  e.\- 
ninination.  and  aft'-r  liavinn  examined 
thirty-cjjijht  sacks  in  all,  he  at  !»  o'clock 
told  the  l)ar{>einan  to  send  up  no  more, 
as  the  wheat,  he  said,  was  not  equal  to 
sample.  The  defcMidant  then  on  the  same 
day  went  off  to  see  the  plaintiff's  asent  at 
a  neifjlitionriiiK  market  town,  and  told  him 
that  the  wheat  was  not  equal  to  sample, 
and  that  he  should  not  take  it.  Some 
ibiys  afterwards,  the  e.xact  interval,  how- 
ever, was  not  stilted,  the  wheat  taken  in- 
to the  mill  was  returned  by  defendant's 
order  to  the  barite,  which  reinaiiu'd  at  the 
defendant's  niill  with  the  wheat  in  it,  the 
plaintiff  refusing  to  take  the  wheat  away, 
for  seven  weeks  and  until  alter  action 
was  Itrouarht,  when  tin-  wheat  was  sold 
by  the  order  of  a  judjie  at  chambers,  and 
the  proceeds  paid  into  court  to  abide  the 
event  of  the  action. 

The  learned  conimiRsioner  directed  the 
jury,  on  the  authority  of  Morton  v.  Tib- 
bett'and  Kibble  \ .  'GoukIi.s  that  there 
was  evirlence  of  an  acceptance  l)y  the  de- 
fendant snllicient  to  constitute  a  contract 
within  the  17th  section  of  the  statute  of 
frauds,  althonjih  the  defemlant  was  not 
precluded  from  rejeclinir  the  wheat  if  not 
equal  to  sample.  The  jury  found  that  the 
wheat  was  equal  to  sample,  and  that  the 
defemlant  had  accepted  it  withia  the 
meaninir  of  the  17th  section  of  the  statute 
of  frauds,  and  accordingly  anve  a  verdict 
for  the  plaintiff. 

'  !.">  Q.  B.  4-.'8. 
■•'3s  L.  T.  (N.  S.)  '.'(M. 
LAW  .sAr.i:s — 39 


A  rule  for  a  new  trial,  or  to  enii-r  judjj- 
ment  f(ir  the  defendant,  was  moved  for  on 
the  jrroiind  that  there  was  no  evidence  for 
the  jury  of  an  acceptance  of  the  wheat 
liy  the  defendant  t<»  satisfy  the  Htatute, 
but  the  iineen'H  bench  division  (Lord  Cole- 
rid^e,  C.  .1.,  and  Cave,  J.)  refused  the  ap- 
plicution. 

Morten.  (Murphy,  t).  C.  with  him.  I  tor 
defendant.  I'hdbrick,  Q.  ('.,  and  It. 
V'auKhan  Williams,  for  plaintitf,  were  n<it 
called  upon  to  arRue. 

BHICTT,  .M.  n.  It  seems  to  me  that  the 
case  of  Kiblde  v.  GouKh"  lays  down  the 
KoverniuK  princi|)le  with  reganl  to  the 
question  whether  there  is  evhience  of  an 
accei)tance  to  satisfy  the  17tli  secliun  of 
the  statute  of  frauds.  It  was  there  point- 
ed out  that  there  must  lie  under  the  stat- 
ute both  an  acceptanceand  actual  re<-elpt, 
but  su<h  acceptaace  need  not  lie  an  aliso- 
lute  acceptance;  all  that  is  necessary  is  an 
acceptance  whicli  could  not  have  been 
made  except  upon  admission  that  there 
was  a  contract,  and  that  the  >to<ids  were 
sent  to  fultil  that  contract.  Cotton.  L.  J., 
in  ;;ivia^  jud;;ment  in  that  rase,  said  :  "All 
that  is  wanted  is  a  receipt  aad  such  an 
acceptanc"  of  the  koimIs  as  sliews  that  it 
has  regard  to  the  ccmtract,  but  tliecoii- 
tract  riMiy  yet  be  left  open  to  objection  : 
HO  that  it  would  not  precluile  a  man  from 
exercisin;;  such  a  ixiwer  of  rejection.  I 
think  that  in  this  case  enough  hail  been 
done  to  satisfy  the  statute."  Now  what 
had  been  done  In  that  case'.'  Tin- nonds 
had  been  taken  into  the  defendant's  ware- 
house and  kept  for  some  time,  thouuh  nut 
so  lonj^  as  to  make  it  unreasonable  that 
the  defendant  shduhl  exercise  his  rlirht  of 
rejection  if  tlie  kooiIs  had  not  been  nccord- 
iiiK  to  contract,  and  the  defendant  hud 
inspected  tlie  goods.  They  therefore  had 
licen  delivereil.  and  actual  possession  of 
them  had  been  taken,  and  they  had  lieen 
dealt  with  by  the  defendant  for  the  piir- 
poseH  of  the  roatr.-ict.  It  was  held  that 
under  those  circumstanceB  what  had 
been  done  in  respect  to  tlie  jioods  liy  the 
defendant  must  lie  considered  as  havintr 
been  done  witli  regard  to  a  contract  for 
the  purchase  of  the  goods, and  as  amount- 
ing; to  a  recognition  of  the  pxintence  of 
such  contract,  and  that  therefore,  though 
the  defendant  iniglit  still  have  a  right  to 
reject  the  goods  if  not  equal  to  sample, 
there  was  evidence  on  which  the  jury 
might  lind  that  the  defendant  had  accept- 
eil  till"  goods  within  the  meaning  of  the 
Htatule.  Tliat  lieing  tin-  law  as  laid  down 
by  tliat  decision,  what  was  the  evidence 
oil  the  question  of  ncreptance  in  tlie  pres- 
ent case'.'  The  wheat  was  sent  tothedi^ 
fendaiit's  mill  in  a  barge,  which  wan 
brought  under  the  mill  in  tlieevening.  The 
next  inoniing  a  considerable  quantity  of 
wheat  was  taken  up  by  the  defemlant's 
servants  into  the  defendnnt's  mill  and 
remained  there  some  time  more  or  less 
until  the  defendant  had  opened  tlie  sacki* 
and  examined  their  contents  to  see  If  they 
corresponded  with  the  sample.  How 
could    the    defendant    have    tliese     HackH 


•  asL.  T.  cN-  s.)  •:(>*. 


GIO 


PAGE  c.  MOKGAX. 


taken  into  liis  mill  and  there  opeiieJ  ami 
examined  witliout  a  lecoaiiitiori  of  tlie  ex- 
istence of  a  contract  entitling  liini  ho  to 
deal  with  them?  How  could  any  reason- 
al)le  n)e;i  come  to  any  otiier  conclusion 
from  hiss  dealins  with  tliem  tlian  that  lie 
had  made  a  contract  of  purchase  with  re- 
yard  to  them,  and  that  the  Koods  were 
<lelivered  to  and  received  by  him  under 
•such  contract,  and  exaniined  by  him  to 
see  if  they  were  according  to  thecoutract? 
It  seems  to  me  clear  that  under  these  cir- 
cumstances there  was  evidence  for  the  ju- 
ry of  an  acceptance  within  the  meaning 
of  the  statute.  I  can  conceive  of  many 
fasps  in  which  what  is  done  with  regard 
to  the  delivery  and  receipt  of  the  goods 
may  not  afford  evidence  of  an  acceptance. 
Suppose  tliat  soods  beini;  taken  into  the 
defendant's  warehouse  by  the  defendant's 
servants,  directly  he  sees  them,  instead  of 
examining  them,  lie  orders  them  to  be 
turned  out  or  refuses  to  have  anything  to 
do  with  them.  There  would  there  bean 
actual  delivery,  but  there  would  be  no  ac- 
ceptance of  the  goods,  for  it  would  be 
quite  consistent  witn  what  was  done  that 
he  entirely  repudiated  any  contract  for 
the  jiurchase  of  the  same.  I  rely  for  the 
XJurposes  of  my  judgment  in  the  present 
case  on  the  fact  that  the  defendant  exam- 
ined the  goods  to  see  if  they  agreed  with 
the  sample.  I  do  not  see  how  it  is  possi- 
ble to  come  to  any  other  conclusion  with 
regard  to  that  fact  than  that  it  was  n 
<lealing  with  the  goods  in volving  an  ad- 
mission that  there  was  a  contract.  It  ap- 
pears to  nie  that,  having  regard  To  the 
case  of  Kibble  v.  Gough,  which  is  an  au- 
thority binding  on  us,  there  was  clearly 
evidence  in  this  case  for  the  jury  of  an  ac- 
ceptance, anil  that  upon  such  evidence 
there  was  only  one  conclusion  to  which 
tliey  reasonably  could  come.  The  counsel 
for  the  defendant  placed  reliance  on  the 
case  of  Rickard  v.  Moore.*  Jt  is  alleged 
that  in  that  case  Lord  Bramwell  doubted 
the  correctness  of  what  he  had  said  in  the 
previous  case  of  Kibble  v.  Gough.  How- 
ever that  may  be,  it  is  quite  clear  tliat 
that  casecannot  overrule  Kibble  v.  (Jough. 
For  tliese  reasons  I  am  of  opinion  that 
this  appeal  must  be  dismissed. 

nAG(iALLAY,  L.  J.  I  am  of  the  same 
opinion.  It  has  been  decided  inthecasesof 
Morton  v.  Tilibett-'"'  and  Kibble  v.  Gough 
that  there  may  be  an  acceptance  within 
the  statute  though  it  is  not  such  an  accept- 


«.SS  L.  T.  (N.  S.)  841. 
'  15  Q.  B.  428. 


ance  as  to  preclude  the  defendantfrom  ob- 
jecting subsequently  that  the  goods  are 
not  according  to  the  contract,  and  reject- 
ing them  on  that  grourid.  Different  opin- 
ions have  been  expressed  as  to  the  true 
grounds  on  which  Morton  v.  Tibbett  was 
based,  but  it  seems  to  me  that  the  case  of 
Kil)b!e  v.  (lough  has  made  the  effect  of  the 
former  decision  clear.  IJeliance  wits  placed 
liy  the  defendant's  counsel  on  the  case  of 
Rickard  v.  Moore.  But  when  that  case 
eonies  to  be  examined  there  are  various 
points  of  difference  which  are  adverted  to 
in  the  judgments,  and  there  is  also  the 
most  important  distinction  adopted  iiy 
Thesiger,  L.  J.,  in  giving  judgment,  viz., 
that,  whereas  in  Kibble  v.  Gough  the  juj-y 
found  that  the  goods  were  equal  to  sam- 
ple, in  Rickard  v.  Moore  the  jury  found 
that  they  were  not  equal  to  sample.  The 
only  ()uestion  we  have  to  consider  is 
whether  there  is  evidence  of  an  acceptance 
in  this  ease  within  the  principle  laid  down 
in  the  cases  of  Morton  v.  Tibbett  and  Kib- 
ble v.  Gough.  It  seems  to  me  clear  that 
there  was  such  evidence. 

BOWEN,  L.  J.  This  case  appears  to  me 
to  be  governed  by  the  decision  in  Kilitile 
V.  (iough.  That  decision  would  be  bind- 
ing upon  me  whether  I  agreed  with  it  or 
not,  but  it  seems  to  me  that  it  is  based 
on  the  soundest  sense.  The  statute  says 
that  the  contract  shall  not  begood  unless, 
among  other  alternative  requisites,  there 
has  been  an  acceiitance  and  actual  receipt 
of  some  part  of  the  goods.  Having  r-e- 
gard  to  the  mischiefs  at  which  the  statute 
was  aimed,  it  would  appear  a  natural 
conclusion  that  the  acceptance  contem- 
plated by  the  statute  was  such  a  dealing 
with  the  goods  as  amounts  to  a  recogni- 
tion of  the  contract.  That,  accordingly, 
was  the  view  taken  by  this  court  in  the 
case  of  Kibble  v.  Gough.  In  Rickard  v. 
Moore  there  was  the  distinction  that  has 
been  pointed  out  by  my  Brother  Baggal- 
lay.  In  Kibble  v.  (Jough  the  goods  were 
found  to  be  equal  to  sample,  and  it  there- 
fore became  necessary  to  decide  in  that 
case  whether  tliere  was  an  acceiitance 
within  the  ITtli  section;  in  Rickard  v. 
Moore  the  goods  were  found  not  to  be 
ecjual  to  sample,  so  it  was  only  necessary 
to  decide  whether  they  were  rightly  reject- 
ed. I  do  not  think  that  Lord  Bramwell, 
by  his  remarks  on  what  had  thus  become 
a  by  point,  can  have  intended  to  overrule 
the  previous  decision  of  tliis  court.  In  an.v 
case  we  are  bound  by  the  decision  in  Kib- 
ble V.  Gough. 

Appeal  tiimnissed. 


PALMER  c.  HAND. 


613 


PALMER  V.  HAND. 

(13  Johns.  4.S4.) 

Riiprcmo  Court  of  New  York.    Oct.  Term,  1S16. 

Tlii'i  wiiH  an  action  of  trover,  trU'cl  bo- 
fort- .Mr.  .Justice  Spencer,  at  the  Albany 
circuit,  in  Ajiril.  ISKJ. 

The  plaintiff  wan  the  owner  of  a  raft. 
coMHistin^  of  ))lank,  joiht,  and  l>onnlH; 
anil  whilst  coming  <lown  tlie  North 
river,  in  the  autumn  of  the  year  1M.">,  witli 
the  raft,  oni'  I'otter  eanie  upon  the  raft, 
and  offeri'il  to  buy  it:  the  price  was 
agreed  upon:  it  was  also  ajrreed,  that 
the  plaintiff  should  <leliver  it  at  one  of  the 
<locks  in  .Mbany,  and  be  at  the  expense  of 
takinc  it  out  of  the  water.  I'otter  then 
applied  to  the  defendant,  who  kept  a 
lumber  yard,  in  Albany,  to  i>urchase  the 
lumber  wliiih  the  plaintiff  had  agreed  to 
sell  him;  l)ut  I'otter  and  the  defendant 
not  lieinu  able  tosettlc  the  bar^^ain.  i  t  was 
ajireed  that  the  defendant  sliouM  take 
and  sell  the  lumber.  The  plaintiff  ar- 
rived w'ith  his  raft,  the  ne.vt  day,  and 
brought  it  to  the  defendant's  dock,  and 
there  inquired  of  one  of  the  witnesses  in 
the  cause  for  Potter,  and  asked  if  I'otter 
was  not  to  have  more  hands  to  take  out 
and  pile  the  hunber,  and  said  that  he  had 
sohl  it  to  I'otter.  He  then  left  the  raft, 
and  went  into  the  city,  and  at  4  o'clock  in 
the  afternoon,  at  which  time  all  the  raft 
was  taken  out  of  the  water,  and  nearly 
all  piled,  a  few  cnllins  pieces  excepted,  the 
plaintiff  returneJ  and  forbade  any  more 
to  be  piled,  sayintr  that  Potter  had  none 
off.  The  defendant,  on  the  same  day,  ad- 
vanced to  Potter,  on  account  of  the  de- 
posit of  lumber,  lOOdollars;  and  also  gave 
him  an  order  on  Wilder  &  Hustings,  for 
150  iloUars,  in  goods,  which  were,  in  the 
oveniuK  of  the  same  day,  delivered  to  him. 
There  was  no  formal  delivery  of  the  lum- 
ber to  Potter,  who,  it  was  conceded,  was 
a  cheat, and  had  absconded.  The  plaintiff 
proved  a  demand  on  the  defendant  to 
restore  the  lumber,  or  pay  for  it,  and  a  re- 
fusal. Tile  jury  found  a  verdict  for  the 
plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  containing  the  above 
facts. 

Van  Vechten,  for  plaintiff.  Henry,  con- 
tra. 

PLATT,  .J.,  delivered  the  opinion  of  the 
court.  This  is  an  action  of  trover,  for  a 
quantity  of  plank  and  scantling.  It  ap- 
pears that  the  plaintiff  was  owner  of  a 
raft  of  lumber,  and  while  descending  the 
river  opposite  to  Lnnsingburgh.  he  con- 
tracted w-itli  one  I'otter  for  the  sale  of  the 
lumber,  to  be  delivered  to  Potter,  by  the 
plaintiff,  on  one  of  the  docks,  in  Albany, 
at  a  price  agreed  on,  to  l)e  paid  on  deliv- 
ery. Potter  then  went  to  the  defendant, 
"ho  keeps  a  luniber-vaiil  and  dock,  at 
Albany,  and  agreed  to  delivei-  to  him  the 
lumber  of  that  raft,  to  be  sold  by  the  de- 
fciidjiut,  on  comniission,  for  Potter. 

Nc\t  morning,  about  sunrise,  the  plain- 
tiff arrived  witli  the  raft,  and  fastened  it 
to   the    defendant's    dock.     The    plaintiff 


then  told  the  workmen  employed  there, 
tlint  he  had  sold  the  lumber  to  Potter. 
One  or  two  men  began  immedlatelv  to 
|)ile  the  i)lank,  &c.,  on  the  d.'tendant's 
dock,  and  the  plaintiff  "asked  if  Potter 
was  not  to  have  more  hands  til  take  out 
and  pile  the  lumber."  The  plainliff  then 
went  Into  the  city,  and  did  not  return 
ai.'ain  till  4  o'clock  P.  .\I..  at  which  time 
the  lumber  was  almost  all  piled  on  the  de- 
fendant's dock.  Tlie  pliintiff  then  for- 
bade the  (lilitig  of  any  more,  saying  that 
I'otter  had  absconded. 

While  the  men  were  piling  U|>  the  lum- 
ber, about  in  or  II  o'clock  A.  M.  of  that 
day,  the  defendant  advanced  to  Potter 
101)  dollars,  and,  also,  gave  an  order  for 
l.'id  dollars'  woi-th  of  goods,  in  favor  of 
Potter,  on  account  of  the  deposit  of  lum- 
ber. The  plaintiff,  afterwards,  demanded 
the  lumber,  which  the  defendant  refused 
to  deliver. 

There  is  no  doubt  that,  upon  u  contract 
to  sell  goods,  where  no  credit  Is  stipu- 
lated for,  the  vendor  has  a  lieu ;  so  that 
if  tlie  goods  be  actually  delivered  to  the 
vendee,  and,  upon  demund  then  made,  he 
refuses  to  pay,  the  proi)erfy  Is  not 
changed,  and  the  vendor  may  lawfullj' 
take  the  goods  as  his  own,  because  the 
delivery  was  conditional. 

.\s  between  the  vendor  and  vendee,  in 
this  case.  I  incline  to  the  opinion  that 
the  property  in  the  lumber  was  not  so 
vesti'd  in  the  vendee  as  that  the  vendor 
could  not  legally  have  resumed  it  when  he 
came,  in  the  afternoon,  and  forbade  the 
piling  of  any  more  of  it. 

The  contract  with  Potter  was  for  the 
whole  raft,  to  be  delivered  on  the  dock. 
Till-  vendor,  therefore,  had  no  right  to 
demand  payment  for  any  part  until  the 
whole  was  delivered;  anil  it  appears  that 
he  came  to  tlie  place  of  ilelivery.  at  4 
o'clock  ill  the  afternoon  of  the  day  on 
which  the  raft  arrived  at  the  dock,  whilst 
the  lumber  was  still  in  the  course  of  deliv- 
ery, and  signilied  his  determination  not 
to  consider  tlie  sale  aa  absolute.  He  said 
that  Potter  had  absconded,  and  ordered 
the  men  not  to  pile  anymore  of  the  plank. 
&c.  Ah  between  Palmer  and  Potter  there 
was  no  such  delay  or  acquiescence  on 
the  part  of  the  vendor,  as  would  be  evi- 
dence of  .'1  credit  given  for  the  money.  If 
the  vendor  was  there,  and  dem.-indeil  pay- 
ment, as  soon  as  the  whole  lumber  was 
plied  on  tlie  dock,  that  was  enough  to 
preserve  his  lien;  and  such,  I  think.  Is  the 
fair  construction  of  the  evidence. 

The  plaintiff,  in  this  case,  seeks  to  en- 
force his  lien  against  a  person  wlio  has 
bona  tide  received  the  property  ns  a 
|)leilge  for  money  and  good.-*  mlvanced  to 
Potter,  to  nearly  the  amonnt  of  its  value. 
Tlios"  ailvances  were  made  bv  tlie  <Iefi'nd- 
ant  while  the  lumber  was  In  a  course  of 
delivery  on  the  dock,  and  before  the  plain- 
tiff assi'rted  his  claim  to  it.  Hut  there  Is 
no  evidence  that  the  plaintiff  had  any 
kiuiwledge  of  the  negotiations  between 
Potter  and  the  defendant,  in  regard  to  the 
lumber,  until  after  the  plaintiff  had  made 
his  election  to  rescind  his  contract  with 
Potter.  This  is  a  contest,  then,  between 
two  honest  men,  who  shall  be  the  dupe  of 


014 


PALMER  v.  HAND. 


n  swindler.  The  strict  rule  of  law  must, 
therol'oro,  l)p  applied  ;  and  the  defendant 
caiMioc  be  allowed  to  stand  in  a  more 
favorable  situation  than  Potter  would 
have  been   in   if   he   him.self   had   withheld 


the  possession  of  the  liinibor,  without 
payiTiK  the  price  when  demanded. 

We  are,  therefore,  of  opinion,  that  the 
plaintiff  "is  entitled  to  judgment. 

Judgment  for  the  plaintiff. 


PARKER  0.  PATRICK. 


617 


PARKER  V.  PATRICK. 

(5  Term  H.  175.) 

Court  of  King's  Uench.     April  22,  1793. 

Oil  tho  trinl  ol  thJH  iiution  of  trover  for 
;ri)()iln  at  the  lust  Sittings,  it  Hppenrcd 
tluit  the  troiiilH  in  riucMtioii  had  bt'cn  oli- 
tained  from  tlie  defendant  l)y  falwe  pre- 
tcnreH.  and  afterwards  pawned  to  the 
Iilaintil'f  for  a  vahiiiblo  conHiderution, 
wKliout  iiotiee  of  the  fraud  :  that  the  per- 
Hon  olitainiiiK  them  had  lieeii  convicted 
liy  the  defendant,  on  which  tlie  latter  not 
DOHHeHHion  of  the  ^ooils  anicin;  and  now 
tliis  action  was  liroUKlit  by  tlie  iilalntiff, 
the  pawnliroker,  to  recover  them  from 
the  defendant.  Tlie  del'endant'H  connHol 
prcHsed  for  a  non-Huit,  contendinir  that 
the  (iiiestion  inunt  he  conwidered  to  he  the 
Haine  aH  if  the  j^ood.s  had  been  felonioii.^ly 
Htoleii  from  tho  defendant;  and  that  the 
plaintiff,  who  derived  litle  tliroii;;h  a 
fraud,  thouuli  ho  himself  were  innocent  of 
the  fraud,  was  not  eiititleil  to  recover 
airaiiiBt  the  ilefendant,  who  was  the  true 
owner:  but  Lord  Kenyon  thought  that 
it  was  not  like  the  case  of  felony,  and  the 
plaintiff  obtained  a  verdict. 

Conste  aniJ  Bayley  now  renewed  the 
same  objection  in  u  motion  toenter  a  non- 
suit; urKiiiK  that  in  this  respect  there  was 
no  difference  between  the  obtaining  of 
Koods  by  fraud  or  felony,  for  that  the  rea- 


sons given  in  tho  latter  case  were  equally 
applicable  to  the  former.  In  a  case  In  13 
Kd.  4.  1).  recot;nizcd  in  Kel.  s|,  k2,  where 
one  hiirKained  witli  uiiother  to  carry 
some  packs  of  noods  to  .Southampton, 
and  delivered  the  goods  to  the  currier, 
who  carried  tlieni  to  another  plac;-,  and 
there  opened  the  packs,  and  took  the 
goods,  and  disiiosed  of  them  to  his  own  uhp, 
it  was  held  to  be  felony  "  because  his  subse- 
nnent  act  of  currying  the  goods  to  an- 
other place,  and  there  opening  them,  and 
disposing  of  them  to  his  own  use,  declared 
that  his  intent  originally  was  nut  to 
take  the  goods  upon  the  agreeii  eut  and 
contract  of  the  party,  but  only  with  n  de- 
sign of  stealing  them. "  Accordingto  which 
doctrine  the  subsequent  act  of  tlie  person 
who  obtained  these  goods  upon  false  pre- 
tences shewed  that  he  did  not  take  them 
upon  the  contract  with  the  defendant,  hut 
by  fraud;  and  consequently  he  could  not 
I  make  a  title  of  them  to  the  plaintiff.     But 

!  PI:R  CURIAM.  This  is  distinguishable 
from  tlio  c.-ise  of  felony;  for  there  by  a 
po.-iitive  statute  1  the  owner,  in  rase  he 
prosecutes   the   offender   to   conviction,  is 

I  entitled  to  restitution  :  but  that    does  not 
extend  to  this  cuse,  where  the  goods  were 
obtained  from  the  defendant  by  a  fraud. 
Rule  refused. 


'21  Hen.  S.  c.  XI.   Vid  Horwood  v.  Smith, 
R.  7.W. 


iTerm 


PAUL   c.  \IEEU. 


619 


PAUL  V.  REED  et  ol. 

<h2  N.  H.  13«.) 

Supreme  Judicial  Court  of  New  Hampshire.    Sul- 
livan.   June.  InT'J. 

Action  by  A/.or  I'liul  asriiinHt  Dexter  O. 
Hceil.  (lefiMiilant,  nixl  Uiiiiii  U.  .Mooilv, 
triiKtci'.  The  triiKtee  wiis  held  liiihle  on 
the  (liHcloHure.  iinil  ilircnilant  took  e.xcep- 
tioMs.     ExceptiouH  KWHtaiin'il. 

The  disclosure  of  .Moody,  the  trustee, 
showed  that  hesiu-ceeded  defendant.  Iteeil. 
us  tenant  of  a  lioardinc  house,  and  when 
he  wan  tiikinK  possession,  and  Heed  was 
moving  out,  he  a^jrecd  to  purchase  from 
Heed  a  ho^,  some  svmar.  and  other  ai'tl- 
cles.  The  agreed  price  of  tlie  articles  was 
as  follows:  One  ho^,  S1(t..")U:  Hour,  $7; 
butter,  SIU:  l)edstead,  f  I  ;  suuar  and  salt, 
51. Ml.  Heed  made  a  nieniorandnni  of  the 
articles  with  the  price  carrie<l  out,  and,  as 
he  was  addin;;  it  up,  the  sheriff  served  the 
trustee  summons  on  .Mood.v.  'IMie  hoji 
had  already  been  removed  by  Moody  to 
another  pen,  and  the  sugar  had  been 
placed  with  .Moody's  other  sufrar.  Wiien 
the  summons  was  served.  Moody  held  the 
money  in  his  hand,  read.v  to  ])a.v  (or  the 
articles  us  soon  as  the  aiiionnt  was  ascer- 
tained. .Vfter  service  of  process.  Heed 
asked  .Moody  to  give  the  articles  up,  sa.v- 
in}r,"\Vpcan  call  It  no  sale,  and  I  can  take 
my  stuff,"  Kivinn  as  a  reason  that  they 
were  not  yet  |)aid  for.  .Moody  replle<l 
that  ho  woidd  take  counsel,  and.  if  it  was 
safe  for  him  to  do  so,  he  would  jiive  them 
up.  Me  was  advised  to  let  the  matter 
stand,  as  there  would  be  a  (juestioii  as  to 
his  liability  to  be  tried.  Defendant,  Heed, 
claimed  the  property,  but  the  court  held 
Moody  to  be  charnealile  with  the  ?:!(). :J0, 
and  defenilant  excepted,  and  the  (|uestlon 
was  reserved. 

Howers,  for  plaintiff.  S.  H.  Edes,  for 
defendant  and  trustee. 

HELLOWS,  C.  J.  I'nlesH  the  principal 
defendant  had  anotherliot;  and  other  pro- 
visions or  fuel,  so  that  the  value  of  his 
provisions  and  fuel  exceeded  twenty  dol- 
lars, all  the  articles  sold  to  the  trustee 
were  exempt  from  attachment.  .As  there 
Is  no  proof  that  he  had  another  hoy:,  or 
more  provisions,  or  fuel,  the  court  cannot 
lind  that  he  had  sudi ;  anil,  therefore, 
unless  the  title  in  these  floods  had  vested 
in  the  trustee  so  that  he  became  inilebted 
for  them,  the  trustee  must  l)e   dischariied. 

The  <|uestion  then  is,  whether  the  jjoods 
were  delivered  so  us  to  vest  the  title  In  the 
trustee. 

The  proof  tends  to  show  that  the  sale 
was  for  cash,  and  not  on  credit: — so  the 
trustee  testilies,  and  this  is  just  what 
would  have  l)een  intendeil  had  no  time  of 
payment  lieen  stipulated,  l!  Kent's  Com. 
'A'.m,  •4117;  Story  on  Con.,  §  7!i(');  Noy's 
Maxims  M;  Insurance  Co.  v.  De  \V(.ll,  l' 
Cow.  10.").  riie  c-ase.  then,  stnmls  before 
us  as  a  contract  of  sale  for  cash  on  deliv- 
ery: in  such  case  the  delivery  and  luiy- 
nient  are  to  be  concurrent  acts;  ami 
therefore,  if  the  poods  are  pnt  into  the 
pos.session  of  the  buyer  in  the  expectation 
that  he  will  immediately  pay  the  price, 
and  he  does  not  doit,  the  seller   is   at   lib- 


erty to  rr^ard  the  delivery  as  conditional, 
and  may  at  once  recl/ilin  the  ;;ooi]h.  Iu 
such  a  case  tin-  contr;ict  of  sale  is  not  ron- 
snmmated.  anil  the  title  does  not  vest  In 
the  buyer.  The  seller,  may,  to  be  sun-, 
waive  the  payment  of  the  price,  and  ui;ree 
to  postpone  it  to  a  future  day,  and  pro- 
ceed to  comrilete  the  delivery:  in  which 
case  it  would  be  absolute,  and  the  title 
would  vest  iu  the  buyer.  I'.ut  in  order  to 
have  this  effect,  it  must  appear  that  the 
Koods  wi-re  put  into  the  Ituycr's  posses- 
sion with  the  intemion  of  vestinK  the  ti- 
tle In  I'.im. 

If,  howeviT,  the  delivery  and  payment 
were  to  he  simultaneouH,  and  the  Koods 
were  ilelivered  in  the  expectation  that  the 
price  would  lie  immediutely  paid,  the  re- 
fusal to  make  payment  wouM  be  such  a 
failure  on  the  part  of  the  liuyer  to  perform 
the  contract  as  to  entitle  the  seller  to  (lut 
an  end  to  it  and  reclaim  the  goocjs. 

This  is  not  only  eminently  just,  but  It  Is 
in  accordance  with  the  ^reat  current  of 
authorities,  whicli  treat  the  delivery,  un- 
der such  circumstances,  as  eonditionul 
upon  the  immccliiite  payment  of  the  [irice. 
L'  Kent's  Com.*4'J7;  Chitty  on  Ci>n.,  '.•th 
Amer.  Eil..  *:!.")().  note  1  and  cases;  Storvon 
Con.,§§  7'.m;,S04;  rainier  v.  Hand,  13  . 1  (dins. 
4:14;  .Marston  v.  Hahlwin.  17  Mass.  tiO.'i; 
J/<'ven  V.  Smith,  I  Denio  ."ii:!.  and  cases  cit- 
ed. So  the  doctrine  was  fully  recocnired 
in  Hussell  v.  .Minor,  I'l'  Wend.  ti.V.l,  where, 
on  the  sale  of  paper,  it  was  a;;reed  that 
the  buyer  slxiuld  cive  his  notes  for  it  on 
ilelivery,  and  the  delivery  was  in  several 
parcels.  On  rieliver.v  of  the  lirst,  the  seller 
asked  for  a  note;  but  the  buyer  answered 
that  he  would  ulve  his  note  for  the  whole 
when  the  remainder  was  delivered,  and  the 
parcel  now  delivered  could  remain  until* 
then.  When  the  rest  was  delivered,  the 
defendant  refused  to  pive  his  note;  and 
tlu' court  held  that  till' ilelivery  of  all  the 
jioods  was  conditional,  and  tliMt  the  seller 
iniKlit  maintain  replevin  for  all  the  jjoo.ls. 
TheKcneral  doctrine  is  fully  recoirnized  in 
this  state  in  Luey  v.  linndy. '.t  .\.  II.  L".»s. 
and  more  especiall.v  in  Ferguson  v.  Clif- 
ford. :!7  .\.  II.  Mi.  where  it  is  laid  down 
that  if  the  delivery  takes  place  when  pay- 
ment is  expected  simultaneously  there- 
with, it  is  in  law  made  upon  the  condi- 
tion precedent  that  the  price  shall  forth- 
with lie  paid.  If  this  condition  be  not  |KT- 
formed,  the  delivery  is  inoperative  to  pass 
the  title  to  the  property,  and  it  may  be 
instiiutly  reclaimed  by  the  vendor. 

I'he  niicstioii  then  is,  whether  the  deliv- 
ery here  was  absulute,  intending;  to  pass 
the  title  to  the  vendee  and  trust  him  for 
the  price,  or,  whether  it  was  made  with 
the  expectation  that  the  cash  would  be 
paid  immediately  on  the  delivery.  This 
is  a  ipiestion  of  fact,  but  it  Is  nubmlltrd  to 
the  court  forilecision.  Ordinarily  it  should 
be  passed  upon  at  the  trial  term:  liut 
where  the  (luestioti  Is  a  mixed  one  of  law 
and  fact,  as  it  is  here.  It  may  not  he  Irreij- 
nlar,  if  the  jud;:c  thinks  it  best,  to  reserve 
the  entire  iiueslion  for  the  whole  court. 
Assnmint:  that  the  qu'stions  both  of  law 
and  fact  are  reserved,  we  lind  that  the 
Kiiods  were  sold  for  cash,  and  of  course 
that  tlie  delivery  of  the  uoods  anil  the 
payment  of  the  price  were  tobo  slmultune- 


620 


PAUL  V.  KEED. 


ou."  ,  iitul  nccordiiifily,  when  a  part  had 
been  (lelivered,  and  the  seller  wan  tiRuring 
up  the  anidunt,  and  the  hiiycr  hud  taken 
out  his  money  to  pav  the  price,  the  act 
was  arrested  by  the  serviceot  this  jirocess. 
The  evidence  relied  cpon  to  prove  the 
delivery  to  be  absolute  and  intended  to 
l)as8  the  title  at  all  events,  is  simply  and 
solely  the  changinff  of  the  hop:  into  an- 
other pen,  and  niixing  the  sugar  with 
other  8U(jar  of  the  buyer.  Without  this 
mixinii  of  the  sugar,  the  case  would  be 
just  tiie  ordinary  one  of  a  delivery  of  the 
goods  with  the  expectation  that  the 
buyer  would  at  once  pay  the  price;  and 
We  think  that  circumstance  is  not  enough 
to  show  a  purpose  to  make  the  delivery 
■■ibsolute,  btit  rather  a  confident  expecta- 
tion that  the  buyer  would  do  as  he  had 
agreed,  and  pay  the  price  at  once.  The 
case  of  Henderson  ".  Lauck,  21  Pa.  St.  '^7)'.), 
was  very  much  like  this.  There  was  a 
sale  of  corn,  to  be  [laid  for  on  the  delivery 
of  the  last  load :  and  as  the  loads  were 
delivered,  the  corn  was  placed  in  a  heap 
with  other  corn  of  the  buyer,  in  the  i)res- 
ence  of  both  parties.  On  the  deli  very  of 
the  last  lot  the  buyer  failed  to  pay,  and 
the  Seller  gave  notice  that  he  claimed  the 
corn,  and  brought  replevin,  which  was 
held    to   lie, — the  court  regarding   the   de- 


livery as  conditional,  and  the  plaintiff  in 
no  fault  for  the  intermingling  of  the  corn. 
It  is  very  clear  that  the  intermingling  of 
the  sugar  does  not,  as  matter  of  law, 
make  the  delivery  absolute;  and  I  think, 
as  matter  of  fact,  it  is  n(jt  sufticient  to 
prove  an  intention  to  pass  the  title  abso- 
lutely. When  th<!  buyer  declined  to  pay 
the  price,  the  seller  at  once  reclaimed  the 
goods,  and  so  notified  the  bu.ver,  vvho  did 
not  object  to  giving  up  the  sale  if  he  could 
safely  do  so. 

Jn  respect  to  the  question  now  before 
us,  it  is  not  material  for  what  I'eason  the 
buyer  declined  to  pay  for  the  goods,  al- 
though the  service  of  the  trustee  proc-.ss 
might  shield  him  from  damages  in  a  suit 
by  the  seller  for  not  taking  and  paying  for 
the  goods.  For  the  purposes  of  this  (jues- 
iion,  it  is  enougli  that  the  buyer  did  not 
pay  the  price,  and  thus  gave  the  seller  a 
right  to  reclaim  the  goods,  which  he  did 
at  once.  The  goods  themselves  were  ex- 
empt from  attachment;  and  the  fact  that 
the  trustee  process  was  designed  to  inter- 
cept the  price  of  those  goods,  could  not 
affect  his  right  to  reclaim  them  when  the 
buyer  declined  to  pay  the  price. 

The  exception  must  therefore  be  sus- 
tained, and  the 

Trustee  discharged. 


I'Kiujcv  c.  i;al<  II. 


623 


PEKLKY   V.  H.\I-CH. 

(23  ['ick.  ^S!. ) 

Supreme  Judicial  Court  of  Massucliusetts.     Es- 
sex.   Nov.  Toi-Di,  ls;i'J. 

A.sHiiniD.sit  on  n  proiiiiHmir.v  iioU'.  At 
the  triiil  in  the  court  of  foinnion  pIciiH. 
before  WilliiniiH  J.,  the  (Icfeniliiiit  iiitro- 
diiL-ed  evidence  tending  to  prove,  that  the 
con.sideriition  of  the  note  w.ih  the  Hale  of 
an  ox  hy  the  plaintiff  to  the  defendant, 
with  a  wfirrnnty.  that  the  o.\  would  fat- 
ten i\»  well  as  any  one  the  defemliint  then 
had;  that  one  eye  of  the  ox,  which  >vas 
then  aii[)arently  defective  and  diHcaHcd. 
wan  falsely  "nd  frandulently  represented 
hy  the  i)laintiff  to  have  l)een  hooked  ont, 
whereas,  in  fact,  it  hii<l  l)een  destroyed  hy 
a  cancer;  and  that  this  disease  was  incur- 
ahle,  and  rendered  the  ox  incapahle  of  lie- 
inK  fattened  and  entirely  worthless  for 
any  other  purpose. 

It  did  not  appear,  that  the  defendant 
had  returned  or  offered  to  return  the  ox 
to  the  plaintiff,  or  had  ever  notified  to 
the  plaintiff,  that  he  was  dissatislied  with 
the  contract,  until  after  the  coniinence- 
inent  of  this  nction,  which  was  several 
years  after  the  sale.  The  defendant  kept 
the  ox  in  his  pasture,  &!■.  for  several 
months,  and  was  at  some  troulile  to  as- 
certain whether  it  would  answer  his  ])ur- 
rxisp.  It  did  not  appear  what  liecHuie  of 
the  ox  afterwards. 

The  defendant  also  offered  evidence  tend- 
in};  to  show,  that  he  purchased  the  ox  for 
the  sole  purpose  of  fa tteniuK  it.  and  that 
this  was  known  to  the  i)laintiff  at  th:' 
time  of  tlie  sale;  and  he  contended,  that, 
upon  these  facts,  then  was  an  implied 
warranty  on  the  part  of  the  plaintiff,  that 
the  ox  should  he  reasonahly  'it  for  that 
purpose. 

The  judRe  instructed  the  jury,  that  no 
-such  implied  warranty  arose  frc.on  thi'se 
tacts;  that  if  they  wei'e  satlstied  that  the 
plaintiff  warranted,  that  theox  would  fat- 
ten OH  well  as  any  one  which  thedefendant 
then  liad.  and  that  the  warranty  was 
false,  or  if  they  were  satisfied,  that  the 
plaintiff  falsely  and  fraudulently  repi-esent- 
ed  the  eye  of  tlit"  ox  to  have  lieen  hookeil 
out.  whereby  the  defend;int  was  induced 
to  |)urchase  it,  and  if  they  were  further 
satislied.  that  the  ox,  if  it  liail  been  re- 
turned to  the  plaintiff  in  a  reasonable 
time,  would  h?ive  been  of  no  pecuniary 
value  to  him,  the  <lefendant  would  be  en- 
titled to  a  venlict;  biit  that,  otherwise, 
their  verdict  should   be  lor  the  plaintiff. 

The  jury  returned  a  verdict  for  the  plain- 
tiff; and  the  defendant  excepted  to  the  in- 
structions to  the  jury. 

Lord,  for  plaintiff.  Perkins.  f<ir  defend- 
ant. 

MORTON.  ,T.  The  Instruction,  that 
there  was  no  implied  wnrrant.v,  is  not 
now  rouii)lained  ot,  and  is  undoubtedly 
correct.  See  lOmerson  v.  ISriKliani.  10 
.Mass.  R.  I'.tT;  Shepherd  v.  Temple,  :t  N. 
(lamp.  R.  l.V).  Kvery  sale  of  ch.it  tels  con- 
tains an  implied  warr-anty.  that  the  prop- 
erty ot  thcni  is  in  the  vendoi'.  I!ut  It  is 
well    settleil    by    authority  as   u   {icneral 


rule,  that  no  warranty  of  the  tinnlitv,  Ih 
ini|)lied  from  the  sale.  Themaxlin.cavent 
emptor,  Koverns.  L' Kent's  Com.  47s ;  Chlt- 
ty  on  Contr.  IX!;  ('!ian!pion  v.  .Short.  1 
,  Campb.  .-.:!;  I'.raKK  v.  Cole,  li  Moore.  114: 
Stuart  V.  Wilkins,  1  houjj.  -.i);  I'arkinHon 
V.  Lee.  2  Kast.  :!I4;  Mockbee  v.  (ianlner, 
'2  Mar.  &  (iill,  Uti. 

But  the  learned  justice  of  the  common 
r»leas  further  Instructed  the  jury  that  If 
there  was  a  fraud  in  the  sale,  or  an  ex- 
press warranty  and  u  breach  of  It,  In  ei- 
ther case,  the  defendant  mi>;ht  avolil  the 
contract,  by  returninK  the  ox  within  n 
reasonable  time;  or.  if  theox  would  have 
been  of  no  value  to  the  plaintiff,  then 
witliout  returnini:  him.  Whether  the  jury 
found  their  verrlict  upon  the  Kround,  that 
no  fraud  or  express  warranty  wasproveil, 
or  that  the  ox  was  of  no  valui',  does  not 
appear.  If  therefore  any  part  of  the  In- 
structions was  incorrect,  thedefendant  Ih 
entitled  to  ii  new  trial. 

Where  the  purchaser  is  indin-ed  hy  the 
fraudulent  misrepresentationH  of  Iheseller, 
to  make  the  |>urchase,  he  may,  within  ii 
reasonjilile  time,  l)y  restorintc  the  seller  to 
the  situation  he  was  in  before  the  sale,  re- 
Hcinil  tlie  contract,  and  recover  back  the 
consideration  paid,  or,  if  he  has  driven  »i 
note,  resist  the  pavment  of  It.  Here  wnH 
no  return  of  th3  property  purchased  .  but 
if  that  property  was  of  no  value,  whether 
there  was  any  frauil  or  not.  the  note 
would  l)e  nudum  pactum.  Theilefendant's 
counsel,  not  con trovertin;;  the  general 
rule,  obji'ctsto  the  (inalilicntion  <jf  it.  lie 
Ka.vs,  that  tlie  ox,  thou>;h  valueless  to  the 
defendant.  mii;ht  be  of  value  loth"  plain- 
tiff, and  so  the  dcf'.'ndant  would  b.  uonnd 
by  his  contraet,  nlthon;;h  hea''i|aired  niith- 
iiitr  by  it.  liut  a  damage  to  the  promlHee 
Is  as  Kood  a  corisideration  as  n  beueflt  to 
the  (iromisor.  ITa  chattel  he  of  no  value 
to  an.v  one.  it  cannot  be  the  basis  of  a  liar- 
;j:ain:  lint  if  it  be  of  any  value  to  either 
party,  it  may  be  a  tjooil  considerntlon  for 
a  promise.  If  it  is  benelicial  to  the  pur- 
chaser, he  certainly  ou;;ht  to  pay  for  it- 
If  it  Ilea  loss  to  the  sellet.  he  is  entitled 
to  remuneration  for  his  loss. 

Itut  it  is  apparent,  that  a  want  of  con- 
sideration was  not  the  principal  ground 
of  defence.  The  defeiiilaut  mainly  relied 
upon  fraud  or  a  warranty.  .\nd  to  ren- 
der either  available  to  ;ivoid  llienote.it 
was  iudispeusable,  th:it  the  property 
should  be  returned.  Ilecannot  resrind  the 
contract,  and  yet  retain  any  portion  of 
the  consideration.  The  only  cxceptinn  Is. 
where  tlie  pnipertv  is  entirely  worthlettM 
to  both  parties.  In  such  case  the  return 
would  be  a  useless  ceremony,  which  the 
law  never  reipiires.  The  purchaser  can- 
not derive  an.v  benelit  from  the  purchase 
and  yet  rescind  the  contract.  It  mast  be 
uulliiied  in  toto,  or  not  at  all.  It  cannot 
be  enfiirced  lo  part  and  rescinded  In  part. 
.\nd.  if  the  property  would  be  of  any  ben- 
elit to  the  seller,  he  is  equally  bound  to 
return  it.  He  who  would  rescind  a  con- 
tract, must  put  the  oilier  party  in  as  good 
asituati<in  as  he  was  before;  otherwise 
he  cannot  do  it.  Cliitly  on  Contr.  L'7»i 
Hunt  V.  Silk.  .">  Kast.  AA'.t;  Conner  v.  Hen- 
derson. 1.'.  Mass.  R.  :tl'.l. 
The   facts  relied  upon    by  the    defendant 


624 


PERLEY  V.  BALCH. 


to  defeat  the  note,  might,  If  proved,  be 
used  in  mitiKfltioii  of  damages.  If  there 
was  a  partial  failure  of  consideration,  or 
deception  in  the  quality  and  value  of  it,  or 
n  breach  ol  warranty,  the  defendant  may 
avail  himself  of  it  to  reduce  the  damat;es 
to  the  worth  of  the  chattels  sold,  and 
need  not  resort  to  an  action  for  deceit,  or 
upon  the  warranty.  Chitty  onContr.  140; 
<Jern!aine  v.  Burton,  3  Starl;.  R.  32;  Bas- 
ten  V.  Butter,  7  East, 480;  Poulton  v.  Lat- 
timore,  !)  Barn.  & Oessw.  2.")'.);  Buyley  on 
Bills,  (2d  Amer.  Ed.)  531,  and  cases  cited. 
But  he  is  not  bound  to  do   this.     He   may 


prefer  to  bring  a  separate  action,  and  he 
has  au  election  to  do  so.  The  present 
judgment  will  not  bar  such  an  action. 
But  however  this  nia.v  be,  it  does  not  ap- 
pear, that  anj'  instructions  were  given  or 
refused  upan  this  point.  The  value  of  the 
property  to  the  defendant  would  have 
been  the  true  rule  of  damages.  And  had 
he  desired  it,  doubtless,  such  instructions 
would  have  been  given.  But  as  heilidnot 
request  them,  he  cannot  complain  of  their 
omission. 

Judgment  of  the  court  of  common  pleas 
affirmed. 


PETERS  V.  FT.  MADISON  CONST.  CO. 


C2: 


PETERH  et  aL  v.  FT.  MADlbON  CONST.  CO. 
et  al. 

(34  N.  W.  Rep.  190,  73  Iowa,  405.) 

Supremo  Court  of  Iowa.    Oct.  5,  1887. 

Appeal  from  circuit  court,  Lfte  county. 

Thie  is  iin  tipi)eul  by  plaintiffH  from  n 
Hnal  order  made  t)y  the  circuit  court  in  a 
sujiplemental  proceediuK  for  the  enforce- 
ment ol  n  jiidKiiient.  The  facts  are  Htated 
in  the  opinion. 

James  H.  Anderson,  for  appellants.  D. 
N.  SpraRue  and  H.  C.  Steniple,  for  ap- 
pellees. 

UKKP,  J.  In  February,  1M79.  the  Ft. 
Madison  ("onstniction  Company  was  in- 
corpornted,  and  soon  aftersvnrds  begnn 
the  work  of  building  a  railroad,  that  be- 
in>!  the  oliject  for  which  it  was  organized. 
The  amount  of  its  paid-up  capital  was 
J31,.')00,  which  was  evidenced  by  ;il'.^  shares 
of  stock  of  .Ifl.oao  each,  of  which  s'.  ^vt  j.  (;. 
Atlee  held  five  shares;  .1.  C.  Atloe,  live 
sliares;  defendant  (jeorse  Schlnpp,  10 
shares;  N.(,'.  Roberts,  two  shares;  (,'harlo8 
Uoerr,  one  share;  A.  L.  CartwriKht,  one 
share;  Peters  &  Bernhard,  three  shares, 
and  C.  H.  Peters  four  and  one-half  shiircs. 
After  building;  about  11  miles  of  roail.  the 
corporation  sold  o\it  to  the  Ft.  Madison 
&  N.  W.  Hy.  Co.,  and  ceased  to  do  busi- 
ness. The  consideration  for  the  sale  was 
$-ll),O()0  of  tirst  mortKaRe  bonds  of  the  pur- 
chasing company.  At  the  time  of  the  sale 
the  corporation  was  indebted  (in  addition 
to  its  indebtedness  to  the  stockholders 
for  their  payments  to  its  capital  stock  I 
in  the  sum  of  fjl'. 542.7s.  The  greater  part 
of  tliis  indebtedness  was  to  the  stockhold- 
ers for  moneys  advanced  by  them  in  addi- 
tion to  their  stock  snbscriptiorjs,  (or  the 
benefit  o(  thecorporat ion.  anil  for  liabilities 
assumed  by  some  of  them  for  it.  I'.ut  ?'I4.- 
.■)00  of  the  mort;;as:e  bonds  of  the  purchas- 
ing company  was  ever  delivered,  and  that 
amount  was  delivered  in  various  amounts 
to  the  individual  stockholders.  A  suit  in 
e(|nity  was  instituted  for  the  windinK  up 
of  the  business  of  the  corporation,  and 
for  the  distribution  of  tlie  assets,  after  the 
payment  of  its  debts,  aiuouK  the  stock- 
holders. 

The  judgment  rendered  in  the  action 
determines  the  facts  enumerated  above. 
It  also  determines  tliat  the  morty:ace 
bonds  in  tlie  hands  of  the  stockliolder.s, 
together  with  the  interest  received  by 
them  thereon,  were  a.ssets  of  the  corjiora- 
tion ;  nn<l  the  receiver  a()pointed  by  the 
court  was  ordered  to  collect  the  same,  and 
ap|)ly  the  proceeds  in  payment  of  the 
debts  of  the  company  and  the  costs  of  the 
proceediUK.  It  also  determines  that  de- 
fendant George  Scldapp  held  Sll),0<.0  of  the 
mortRace  bonds,  and  that  he  had  received 
as  interest  thereon  the  sum  of  .'?L'.-l(i.">.  The 
hulebtedness  of  the  corporation  to  indi- 
viduals was  also  determined,  and  It  was 
determined  that  it  was  indebted  lo 
Xchlnpp  in  the  sum  of  ifL'.TlU.T.'i.and  to  him 
and  A.  L.  Cartwriuht  in  the  sum  of  ;?:(.- 
23".). 4S;  the  latter  sum  beinj;  thenmount  of 
judgment  obtaineci  nsrainst  Schlapp  and 
Cnrtwricht  for  an  indebtedness  incurred 
by  them  for  the  benelit  of  the  corporation. 


The  judsment  also  contained  the  follow- 
ing provision:  "It  is  further  ordered  that, 
if  any  of  the  parties  desire,  they  may  ap- 
ply the  amount  due  thereon,  respectively, 
upon  their  pro  rata  proportion  of  the 
charges  as  aforesaid  against  the  property, 
and  pay  the  balance,  if  any,  in  cash,  and 
thereupon  they  may  retain  their  pro  rata 
amount  of  bonds,  or  be  entitled  to  riHeive 
their  pro  rata  amount  of  bonds  from  the 
receiver;  anil,  if  the  amount  due  them 
should  exceed  their  pro  rata  amount  of 
tlieir  charges  against  the  property,  they 
may  apply  so  much  as  Is  necesHnry,  aiid 
retain  or  receive  their  bonds,  and  be  enti- 
tled to  receive  the  balance  from  the  IudJh 
in  tlie  hands  of  the  receiver." 

That  judgment  was  entered  on  the 
twenty-seventh  of  .March.  KM.  Di-fend- 
ant  Schlapp  did  not  deliver  the  mortgage 
bonds  to  the  re<'elver,  nor  did  he  pay 
over  to  him  thenmount  of  the  money  he 
had  received  as  interest  thereon  ;  and,  on 
tlie  twenly-si.xth  of  Febninry  folhjwinii;, 
an  e.xecution  was  issued  on  the  judgment, 
directing  the  sheriff  to  collect  from  him 
the  l)onds,  and  the  amount  of  money  re- 
ceived by  him,  but  the  exifution  was  re- 
turned unsatisHed.  On  the  eleventh  of 
.April,  ISN.'),  ti.e  plaintiffs,  who  are  stock- 
holders in  the  corporation,  itistituted  this 
proc-eeiling  fur  the  pur[>ose  of  enfoicing 
the  juilgment  against  Schlapp.  They  al- 
leged in  tiieir  petition  that  he  had  con- 
verteil  the  bonds  and  money  in  his  hands, 
and  that  he  was  indebted  to  the  corpora- 
tion in  llie  amount  of  their  value,  and 
tlu-y  prayed  that  a  moni'y  judgment  be 
entered  against  him  for  that  amount,  and 
the  same  be  applied  in  satisfaction  of  the 
corporate  debts.  They  also  made  .\Iarle 
.Schlafip.  the  wife  t>f  (icorge  Schbip[i.  a 
defendant  in  the  proceeding,  and  sought 
to  subject  certain  property,  which  they 
alleged  she  hcdds  in  fraixl  of  the  rights  of 
the  creditors  of  her  hUNb'ind.  to  the  satis- 
faction  of  whatever  judgment  ndght  be 
rendered  against  him.  The  circuit  court, 
on  the  heariag,  dismissed  the  petition  an 
against  .Marie  Schlapp.  It  also  entered  an 
order  or  jinlgmeiu  wliich  deti-rmines  that 
(Jeorge  Schlapp  holds  the  SHl.nu)  iif  mort- 
gage bonds  as  assets  of  the  corporation, 
and  required  him  to  pay  the  same  over  to 
the  receiver  within  L'O  days  from  the  ren- 
dition of  tlie  judgment,  or  pay  to  him  the 
sum  of  :f4,ss().,',n,— the  amount  which  It  Is 
found  woulil  be  due  from  him  in  case  he 
retains  the  lnuids.  It  Is  from  this  order 
that  the  present  appeal  Is  presented.  Uy 
an  amendeil  abstr.-ict  theilefendant  shows 
that  since  the  rendition  of  the  judgment 
he  has  ilellvered  the  bonds  to  the  ri-ceiver. 
which  delivery  was  made  within  the  JO 
days  allowed  therefor  by  the  jmlginent. 
anil  that  the  circuit  court  has  onlereil  the 
receiver  to  sell  the  same,  and  apply  the 
Iiroeeeds  to  the  payment  of  the  debts. 
This  order,  however,  was  made  at  a  term 
Riibsennent  to  that  at  which  the  judgment 
was  entered. 

1.  It  is  insisted  by  the  Hpiiellnnls  that. 
upon  the  facts,  they  were  entitled  to  nn 
absolute  money  judgment  for  the  amount 
which  defendant  ought  to  pn.v  as  his  pro 
rata  share  of  the  debts,  and  we  think  this 
position    must   lie  sustained.     L'uder   the 


628 


PETERS  V.  FT.  MADISON  CONST.  CO. 


original  judgment,  defendant  was  re- 
quiri'd  to  pay  over  the  bonds  and  money 
in  liis  hands  to  the  receiver;  but,  under 
tlie  provision  of  the  jutlgraent  set  out 
above,  he  had  the  election  to  retain  tliem, 
and  pay  to  the  receiver  the  balance  re- 
niainins  after  deducting  the  indebtedness 
which  the  corporation  was  ovN'iug  him. 
On  the  facts,  he  must  be  held  to  liave 
made  this  election.  He  retained  the  prop- 
erty when  the  supplemental  proceeding 
was  instituted.  He  refused  to  surrender 
it  to  the  officer  who  souRlit  to  recover  it 
on  the  e.xecution  issued  on  the  judgment, 
and  he  did  not  even  offer  to  surrender  it 
pending  the  supplemental  proceedings. 
While  lie  did  not  in  express  words  express 
an  election  to  retain  it,  all  his  conduct  in- 
dicated that  he  had  determined  to  avail 
himself  of  the  privilege  accorded  to  him 
by  the  judgment  to  retain  it;  and,  having 
made  that  election,  he  cannot  now  be 
permitted,  after  tlie  circumstances  have 
changed,  and  the  valueof  theproperty  may 
have  depreciated,  to  make  a  different  elec- 
tion, and  the  circuit  court  erred  in  award- 
ing him  a  second  election.  We  do  not  con- 
sider the  matters  shown  by  defendant's 
amended  abstract.  The  records  embt)died 
in  tliat  abstract  relate  to  proceedings  sub- 
sequent to  theorderor  judgment  appealed 
from.  Tliey  do  not  relate  to  that  judg- 
ment, and  cannot  be  considered  in  deter- 
mining the  questions  of  its  correctness. 
The  appeal  does  not  bring  tliera  here  for 
•  review. 

2.  Having  reached  the  conclusion  that 
plaintiffs  are  entitled  to  an  absolute 
money  judgment  against  George  Schlapp, 
we  will  inquire  as  to  the  correctness  of 
tlie  order  (iisniissing  the  petition  as 
against  Marie  Schlapp.  The  property 
wliich  she  claims  to  own  is  .fL'2,500  of 
United  States  bonds.  These  lionds  for- 
merly lielonged  to  George  Schlapp.  It  is 
claimed  that  lie,  in  1879,  made  an  absolute 
gift  of  them  to  his  wife.  Tlie  proof  is  that 
he,  being  the  owner  of  the  bonds,  and 
being  about  to  go  on  a  journey  to  a  for- 
eign country,  called  liis  wife's  attention  to 
them,  and  said  to  her:  "  I  give  these  bonds 
to  you,  and  I  show  you  how  to  cut  the 
coupons  so  you   may  know  how  to  do  it 


yourself,  and  use  the  money  for  your  liv- 
ing."  He  did  not,  however,  deliver  them 
to  her,  but  took  them  to  a  bank,  in 
the  vault  of  which  he  had  a  drawer  in 
which  he  kept  his  private  papers.  He 
placed  them  in  the  drawer,  wliicli  he 
locked,  and  the  key  to  which  he  retained. 
During  his  aiisence  his  father  had  access 
to  tlie  drawer,  and  as  the  interest  on  the 
bonds  matured,  he  detached  the  coupons, 
and  delivered  them  to  the  bank  for  collec- 
tion, and  as  the  money  was  collected  it 
was  paid  to  Mrs.  Schlapp.  When  George 
returned  from  his  journey,  he  assumed 
cuntrol  of  the  drawer,  and  as  the  interest 
fell  due  on  the  bonds  he  would  detach  the 
coupons,  and  deliver  them  to  the  bank  for 
collection,  and  when  the  money  was  re- 
ceived by  the  bank  it  was  passi^d  to  his 
credit.  The  business  was  transacted  in  this 
manner  for  about  two  years;  after  which 
the  bank,  by  George's  direction,  opened 
an  account  in  the  name  of  Mrs.  Schlapp, 
in  which  it  credited  the  interest  as  it  was 
collected.  He,  however,  continued  to 
draw  out  money  as  he  needed  it,  on  diecks 
drawn  on  the  bank  by  himself  in  liis  wife's 
name.  She  has  never  had  the  bonds  in 
her  possession,  nor  has  she  ever  seen  tliem 
since  the.v  were  first  locked  up  in  tlie 
drawer  in  tlie  bank  vault.  It  is  very  clear 
that  she  is  not  vested  with  the  title  to 
them.  To  constitute  a  valid  gift  of  per- 
sonal property,  there  must  be  an  actual 
delivery  of  the  property, or  some  act  must 
be  done  which  in  law  is  the  equivalent  of 
such  delivery.  Willey  v.  Backus,  52  Iowa, 
401,  3  N.  W.  Uep.  431.  Nothing  of  the  kind 
was  done  in  the  present  case.  The  title 
to  the  projierty  remains  in  the  husband. 
At  his  death  it  would  descend  to  his  per- 
sonal representatives  as  assets  of  his  es- 
tate, and  during  ills  life  it  may  be  subject- 
ed by  his  creditors  to  the  payment  of  his 
debts.  He  claims  to  be  insolvent,  and 
said  Ijonds  are  the  only  propertj'  within 
tlie  reach  of  bis  creditors. 

The  judgment  will  be  reversed,  and  judg- 
ment in  harmony  with  tliis  opinion  will 
be  entered  in  this  court,  or  the  cause  will 
be  remanded  for  the  entry  of  such  judg- 
ment in  the  court  lielovv.  as  the  parties 
may  elect.     Reversed. 


PETERS  BOX  &  LUMBER  CO.  v.  LESH. 


C31 


FETKIIS  BOX  &,  LOMBEU  CO.  v.  LESH  ot  al. 

(20  N.  E.  Rep.  291,  119  Ind.  98.) 

Supreme  Court  of  Indiana.    Feb.  21,  1889. 

Appeal  from  circuit  court,  Huntington 
county;  Henry  B.  Snylcs,  Judue. 

Action  of  rei)lovin  jiKninHt  tlie  Peters 
Box  anil  Liin]t)er  Company  tiy  VV.  H.  and 
J.  A.  LchIi,  to  recover  certain  liiinl)er. 
.ludK'nent  for  iilaintiffH,  and  defendant 
appeals. 

A.  Zollars,  H.Colcrlck,  and  W.S.  Oppen- 
heini.  for  appellant.  K.  W.  KawleH  and  T. 
E.  Ellison,  for  appellees. 

COFFEY,  J.  Tills  action  was  iirouRht 
by  the  appellees  at;jiin.st  the  ai)pellant  in 
the  Allen  circuit  court,  to  recover  certain 
lumber  and  logs  di.'Kcribed  in  the  com- 
plaint. The  cause  was  put  at  issue  by 
a  general  denial,  and  the  venue  was 
changed  to  the  Huntitiuton  circuit  court. 
The  cause  was  tried  by  a  jury,  who  re- 
turned a  verdict  for  the  appellees,  assess- 
iuK  tlie  value  of  the  property  at  $'2~0. 
Motion  for  a  new  trial  overruled  and  ex- 
cepted to,  and  juilKUient  on  the  verdict. 

The  errors  assiKued  in  this  court  are: 
(1)  That  theHuntin«ton  circuit  court  had 
nojuri.sdiction  over  the  cause;  (2)  that  the 
court  erred  in  overruliuK  the  motion  for  a 
new  trial.  No  point  is  made  in  the  brief 
of  counsel  for  the  appellant  on  the  first 
aHHinnnient  of  error,  and,  therefore,  the 
same  is  waived.  The  evidence  on  the  part 
of  the  appellees  tends  to  prove  that  the  ap- 
pellant is  a  corporation  carryini;  on  a 
larKC  saw-mill  and  lumber  business  at  the 
city  of  Fort  Wayne,  Ind. ;  that  the  appel- 
lees, in  November,  tss;(,had  been  and  were 
opera  tint;  a  saw-mill  at  Sidney,  Kosciusko 
couuty,  ind.;  that  a  man  calling;  himself 
Milliard  came  to  .Sidney,  and  represented 
to  the  appellees  that  be  was  the  iiKent  of 
the  appellant,  to  buy  lumber  and  Ions  for 
it.  The  appellant  had,  before  that,  to  the 
knowledRc  of  the  api)ellee8,  bought  such 
property  in  that  vicinity,  and  they  sup- 
posed ho  was  such  afj;eut.  One  of  the  ap- 
pellees went  with  the  said  Al'lliard  to 
several  places,  where  he  bought  Iii^h  for 
the  appellant,  and  they  liiially  sold  him, 
as  the  agent  of  appellant,  the  property  in 
question,  for  f2(i;!.  By  their  agieement, 
it  was  to  be  measured,  put  on  the  cais, 
the  measurement  to  be  sent  to  the  ajipel- 
laut  and  it  to  immediately  pay  the  bill  by 
a  draft  oil  New  York.  The  property  was 
measurvd,  sold,  and  shipped  on  Monday, 
and  Milliard  left  Fort  Wayne  on  Tuesday. 
The  draft  not  comiiiK,  one  of  the  appel- 
lees wer.t  to  Fort  Wayne  on  Tuesday, 
where  he  met  Mr.  I'apa,  the  n|)pellant's 
president,  and  asked  liim  to  p'ly  for  said 
property.  Papa  denied  the  authority  of 
Milliard  to  act  for  the  appellant,  and,  after 
ilemaiid,  refused  to  deliver  the  property, 
and  also  refused  to  say  much  ab-uit  the 
contract  of  appellant  with  Milliard,  ov  to 
Hay  how  much  he  had  been  paid  for  the 
property.  The  appellant  did  in  fact  pay 
Milliard"  .f  rj.">  for  the  property  in  contro- 
versy. Iiiiiiiediately  after  the  delivery  of 
the  property  to  it  by  Milliard,  the  appel- 
lant coiumenced  to  saw  up    the   logs   and 


mix  the  lumber  with  Its  own.  up  to  tlilH 
point  there  seems  t(j  be  no  diHHKreement 
about  the  facts.  It  is  claimed  tiy  the  ap- 
pellant that  bills  of  lading  wpre  mndp  out 
for  the  property  in  the  name  of  .Milliard, 
with  the  Consent  of  one  of  the  appelleeii, 
but  tills  fact  Is  disputed  by  the  appelleeii, 
will)  claim  that  there  was  nothng  made 
out  at  the  freight  olllce  from  which  the 
property  was  Hhlp[ied  except  a  receipt  for 
the  property. 

The  court  gave  to  the  jury  the  following 
Instruction:  ".Should  you  find  from  the 
evidence  that  the  title  and  right  to  pos- 
session of  the  property  In  controvt-rsy  la 
in  the  plaintiffs,  and  if  yon  further  Hud 
that  the  defendant.  In  the  purchase  of  Bald 
property,  was  in  nofnult,then  you  sh<iuld 
(ind  the  value  of  said  projierty  at  what 
you  believe  was  Its  fair  market  value  in 
the  condition  and  place  it  was  situated 
when  the  plaintiffs  demanded  the  same  of 
the  defendant.  If  such  demand  were  made, 
exclusive  of  any  expenses  or  labor  the  de- 
fendant may  have  invested  in  manufactur- 
ing the  same  into  lumlier  up  to  the  time 
said  demand  was  made,  lint  if  the  evi- 
dence shows  defendant  knew  or  ought  to 
have  known  that  Milliard  was  not  the 
real  owner,  then  you  siiould  not  take  Into 
consideration  any  expense  or  labor  the 
defendant  put  upon  said  logs  and  lumber, 

]  but  give  the  plaintiffs  a  verdict  for  the 
full  value  at  the  time  and  place  it  was  de- 
manded, and   in   its  condition  then.  "     'io 

I  I  he  giving  of   this   instruction   the   appel- 

I  lant  excepted. 

1  The  court  had  previously  instructed  the 
jury,   substantially,  that  if    .Milliard    had 

:  represented  himself  to  the  appellees  as 
the  agent  of  the  n|)|)ellaiit.  and  ihey,  rely- 
ing on  such  representation,  solil  him  the 
|)roperty  in  controversy  as  such  agent, 
without  any  intention  of  vesting  the  title 
in  him,  but  Intending  to  vest  it  In  the  ap- 
pellant, when  he  was  in  fart  not  the  agent 
of  the  appellant,  such  sale  was  void  and 
vested  no  title  in  Milliard,  and  he  could 
not  by  a  suliseiiuent  sale  vest  title  to  the 
property  in  the  atipellant. 

This  case  comes  clearly  within  the  law 
as  enunciated  In  the  case  of  Alexander  v. 
Swnckhanier,  lO.^)  Ind.  M,  ■«  N.  E.  Kep.  -133. 
and  ,">  N.  E.  Rep.  '.los.  It  Is  there  distinctly 
decided  that  in  a  case  like  this  no  title 
liasses  to  the  fraudulent  fiurcliaser,  and 
that  such  purchaser  cannot  by  any  subse- 
(liient  sale  transfer  title  to  another,  for 
the  reason  that  he  has  none  to  transfer. 
It  must  be  true,  then,  that  at  the  time  (ho 
apiiellecH  demanded  possession  of  the 
property  of  the  appellant,  at  l'"ort  Wayne, 
the  title  was  In  them,  as  well  as  the  right 
to  the  posses.sion.  It  was  tlieiluty  of  the 
appellant  to  surrender  to  them  such  pos- 
session, and  U|)on  its  failure  or  refusal  to 
do  so,  what  were  they  eiilided  tori>'over? 
It  is  earnestly  conteiiiled  by  the  learned 
counsel  for  the  appellant  that,  as  the 
freight  from  Sidney  to  Fort  Wayiii-  was 
paid  by  the  appellant,  the  meaKiire  of    the 

I  appellee's  damages  was  the  value  of  the 
propertv  at  Sidne\  .  lint  It  must  be  re- 
membered that  the  appillant  did  not  pur- 
chase   the    property    at    .Shlney.     It    was 

j  purchased  at  Fort    Wayne;    and    the   ap 


632 


PETERS  BOX  &  LUMBER  CO.  o.  LESH. 


pellant  must  be  presumed  to  have  taken 
into  consideration  the  amount  he  would 
be  compelled  to  pay  to  obtain  possession 
of  the  property,  in  Bxing  its  value  at  the 
time  of  thepurchase.  Iteertaiuly  will  not 
be  contended  that  the  appellant  could 
refuse  to  deliver  the  i)ossession,  upon  de- 
mand, because  it  had  paid  the  freight. 
Korean  it  be  successfully  claimed  that 
Milliard,  the  fraudulent  purchaser,  euuld 
claim  to  have  the  freight  refunded  to  him 
if  he  had  been  cauf^ht  at  Fort  Wayne,  be- 
fore he  had  disposed  of  the  property.  Sec- 
ti<jn  572,  Rev.  St.  ISSl,  provides  that  in  ac- 
tions to  recover  the  possession  of  personal 
property  judgment  for  the  plaintiff  may 
be  for  the  delivery  of  the  property,  or  the 
value  thereof  in  case  a  delivery  cannot  lie 
had,  and  for  dama};os  for  the  detention 
thereof.  It  is  not  denied  that  at  the  time 
of  the  demand  the  appellant  had  the  prop- 
erty in  controversy,  and  tliat  it  could 
have  delivered  it  to  the  aiipellees.  By  re- 
fusing to  do  so,  we  think  it  became  liable 
to  the  appellees  for  the  value  of  siicli  prop- 
erty at  the  time  and  |)lace  of  such  demand 
and  refusal,  less  any  additional  value  it 
may  have  had  by  reason  of  labor  be- 
stowed upon  it,  in  )j;ood  faith,  before  such 
demand  was  made.  Mitchell  v.  Burch,  3G 
Ind.  529;  Wells,  Rep.  !?§  540,503;  Cushint; 
V.  Longfellow,  2fi  Me.  liOli.  It  is  clainipd 
that  in  actions  for  trover  the  rule  is  differ- 
ent, but,  as  this  is  an  action  of  replevin, 
we  need  not,  and  in  fact  do  not,  decide 
that  question. 

It  is  earnestly  insisted  by  the  learned 
counsel  for  the  appellant  that  as  the  ap- 
pellees permitted  Milliard  to  take  bills  of 
lading  in  his  name,  and  thus  enabled  him 
to  sell  the  property  to  an  innocent  pur- 
chaser for  full  value,  they  are  now  es- 
topped from  claiming  the  property  in  con- 
troversy in  the  hands  of  the  appellant. 
Instructions    were   given  by    the    court. 


and  others  asked  by  the  appellant,  and 
refused,  which  fairly  raise  this  question. 

The  court  instructed  the  jury  that  if 
Milliard  had  the  hills  of  lading  made  out 
in  his  own  name  as  the  consignor,  to  en- 
able him  to  fraudulently  sell  the  same  to 
the  defendant,  and  the  plaintiffs  knew 
that  the  prcjperty  was  so  shipped,  and 
that  Milliard's  purpose  in  so  shipping  said 
property  was  that  he  might  fruudulentlv 
sell  the  same  to  the  defendant,  then  tlieir 
verdict  should  be  for  the  defendant.  In 
tlie  case  of  Alexander  v.  Swackhamer, 
supra,  this  court,  by  Mitchell,  J.,  says: 
"The  appellee  was  not  estopped  on  the 
ground  of  negligence  in  delivering  the  cat- 
tle under  the  circumstances  disclosed.  To 
constitute  an  estoppel  the  party  sought 
to  be  estopped  must  have  designedly  done 
some  act  or  made  some  admission  incon- 
sistent with  the  claim  or  defense  which  he 
proposes  t(j  set  up,  and  another  must 
have  acted  on  such  admission  with  his 
knowledge  and  consent."  If  the  appellees 
acted  under  the  belief  that  Milliard  was 
the  agent  of  the  appellant,  and  that  they 
were  selling  the  jjroperty  to  the  appel- 
lant, basing  such  belief  on  the  representa- 
tions made  to  them  by  Milliard,  we  do 
not  think  that  they  would  lie  estopped 
from  claiming  their  property  by  reason  of 
permitting  the  bills  of  lading  to  be  made 
out  in  the  name  of  the  supposed  agent.  The 
instructions  asked  by  the  appellant  ignore 
this  phase  of  tlie  case,  and  we  think  the 
court  properly  refused  to  give  them.  We 
are  of  the  opinion  that  the  instruction 
given  by  the  court  properly  stated  the 
law  applicable  to  the  case  as  made  by  the 
evidence. 

We  flud  no  error  in  the  record  for  which 
the  judgment  should  be  reversed.  Judg- 
ment affirmed. 

Petition  for  rehearing  overruled. 


PHILADELl'lIIA  vV  K.  li.  CO.  p.  WIltKMAX. 


035 


PHILADELPHIA  &  R.  R.  CO.  v.  WIREMAN. 

(SS  Pa.  St.  264.) 
Supreme  Court  of  Pennsylvania.     Jan.  20,  1879. 

Action  by  tlie  Plilliidclpliia  &  lieadiii)^ 
Kiiilroad  ("onipiiny  u>iiiiii«t  Jacoh  Wire- 
man  t<i  recover  the  value  of  property  niiH- 
(lellvered  hy  Hnid  company  to  deleiidant. 
Verdict  for  defendant,  and  plaintiff  ap- 
pealH.     Atlirnied. 

SpauldiiiK  &  Son,  of  Kluurn,  Hold  certain 
DierciiandiHe  to  one  l-isler.  piiyment  to 
be  made  in  defendant's  paper,  Indorned  l-y 
FiHler.  The  vendors  delivered  the  k<'<>iI« 
to  the  Leliijih  Valley  Hailroad  C(>nipany 
to  be  forwarded  to  defendant  at  plaintiff'H 
station  in  ['hilndelphin,  at  the  Haine  time 
Bending  Finler  their  bill,  the  receipt  of  the 
railroad  company,  and  a  draft  for  defend- 
ant's acceptance  an<l  Fii^ler's  indorsement. 
The  sellers  then  hearing  that  Fisler  and 
Wireman  were  not  responsible,  and  fail- 
ing to  get  additional  security  from  them, 
left  orders  with  plaintiff's  railroad  not 
to  deliver  the  goods  to  defendant.  The 
goods  having  been  transshipped  to  plain- 
tiff's railroad,  th"  latter  delivered  them  to 
defendant  on  bis  [)reseutatiou  of  the  mem- 
orandum of  shipment  and  the  Lehigh  Val- 
ley Itailroad  ("ompany's  receipt,  which 
Spaulding  &  Son  had  sent  to  Fisler,  and 
the  latter  had  turned  over  to  defendant. 
Spaulding  &  Son  returned  the  paper  of 
Wireman.  and  broucht  suit  in  Eliniru 
against  plaintiff  railroad  company  for  the 
value  of  the  goods,  and  obtained  judg- 
ment therein.  Plaintiff  paid  this  judg- 
ment, and  then  brouirht  this  suit 

Before  SHARS\V()()1),  C.  J.,  and  MEK- 
Cri!,  (JOKDOX.  PA.XSON,  WOODWAHl), 
THU.NKEY,  and  STICKUETT,  JJ. 

Thomas  Hart,  Jr.,  for  plaintiff  in  error. 
Hufus  I'].  Shnpley,for  defendant  in  error. 

STEHKETT.  J.  The  pinintiff'si  laini.  as 
appears  by  the  bill  of  particulars,  was 
based  on  the  unauthorized  delivery  of  the 
goods  consigned  to  the  defendant  Wire- 
man.  Hence,  the  main  question  was, 
whether  the  latter  had  a  right  to  receive 
them  at  the  time  they  were  delivered  to 
him  by  the  plaintiff's  agent.  To  show 
that  he  hail  not,  the  plaintiff  mainly  relied 
on  the  qualilication  and  direction  con- 
tained in  its  way-bill,  to  "deliver  only  on 
the  order  of  II.  ('.  Spaulding  &  Son,  of  El- 
mira."  Kesting  upon  this  alone,  thedeliv- 
ery  to  Wireman.  without  the  order  of 
Spniddiiig  A:  .Son,  would  have  been  unnu- 
tliorizeil  ;  but  the  testimony  ndiluced  by 
the  defendant  tended  strongly  to  prove 
that  Fisler  hacl  purchasetl  the  goods  from 
Spaulding  &  Son,  to  be  delivered  at  Eliiii- 
ra,  consigned  to  Wireman,  and  to  be  paiil 
for  in  the  negotiable  pai>er  of  the  con- 
signee, endorsed  by  Fisler;  that,  piirsuant 
to  agreement,  the  goods  were  delivered 
at  Elmirn  to  the  Lehigh  Valley  Kailroad 
Company,  whose  receil)t,  for  theirdelivi'ry 
to  Wireman  at  Philadeljiliia,  without  any 
(lualilication  or  restriction,  was  taken  by 
Spaulding  &   Son,   and    immediutely   sent 


by  them  to  Fisler  In  a  letter,  advising  lilm 
of  t^e  shipment  and  enclosing  ciraft  for 
the  amount  to  be  accepted  by  Wireman, 
endorsed  by  Fisler  ami  remitted  to  the 
consignors:  anil  that  on  the  arrival  oftho 
goods  in  Philadelphia.  Wireman.  who  had 
agreed  to  purchase  them  from  I'lfler,  ((re- 
sented the  receipt  of  the  Lehigh  Valley 
liailroad  Company,  paid  the  freight  anil 
received  the  goods.  If  these  facts  were 
found  by  the  jury,  as  they  doubtless  were, 
from  the  testimony  Hubmitled  to  tln-m, 
they  constituted  a  complf  te  answer  to  the 
alleged  want  of  authority  in  Wireman  to 
detnand  an<l  receive theconsignment.  The 
learned  judge  was  therefore  clearly  right 
in  receiving  the  testimony  and  submitting 
it,  n.s  he  did,  to  the  jury. 

The  testimony  fairly  justified  the  Infer- 
ence thac  after  S[>aulding  &  Son  had  tak- 
en the  receipt  of  the  Lehigh  Valley  Itail- 
road Company,  and  mailed  it  to  Fisler, 
they  doiilitAl  the  solvency  of  Wireman 
and  Fisler,  and  induced  the  company  to 
restrict  the  delivery  to  the  consignee,  by 
adding  to  the  bill  of  lading  the  words 
above  quoteil,  and  when  the  goods  were 
transferred  to  the  plaintiff  company,  at 
Allentown  .lunction.  the  <>..i::e  direction 
ivas  inserted  in  its  way-ldll.  IJut  neither 
Fisler  nor  Wireman  was  a  party  to  this 
change  In  the  terms  of  shipnicnt,  and  were 
not  bound  by  it.  If  the  goods  were  pur- 
chased and  delivered  at  Elmira.  as  con- 
tended by  the  defendant,  the  title  had 
passed  from  Spaulding  Ji  .Son  and  vested 
in  the  purchaser.  .After  an  uni|unlilied  de- 
livery to  the  carrier  at  Elmira  they  were 
no  longer  at  the  risk  or  under  the  control 
of  Spauliling  &  Son,  and  they  had  no  right 
to  say  that,  on  reaching  theirdestination. 
they  should  not  be  clelivered  to  the  con- 
signee without  their  order.  If  the  i>lain- 
tift  company  had  refused  to  deliver  the 
goods  on  presentation  of  the  receipt  and 
teiiiler  of  the  freight  by  the  consignee,  he 
could  have  sustained  replevin  by  proving 
the  facts  which  the  jury  must  ha\e  found 
under  the  instructions  ol  the  court  in  this 
case. 

There  may  be  apparent  hardship  In  the 
failure  of  tiie  plaintiff  to  reco\er,  after 
having  been  sued  by  the  consignors, In  the 
state  of  .New  York,  for  misdelivery  of  the 
goods,  anil  compelled  t<.  pay  the  volue 
thereof;  but  with  this  we  have  nothing 
to  do.  It  may  lie  that  the  right  of  the 
consignee  to  receive  the  goods,  was  not 
urged  or  sustained  in  that  case  as  it  was 
in  this.  Ill  the  present  case,  as  we  have 
seen,  the  action  was  based  e.\clusively  on 
the  ground  that  the  consignee  had  no 
right  to  reieive  the  goods  without  the  or- 
der of  the  consignors,  a  position  which  the 
plaintiff  failed  to  maintain.  Perhaps  the 
result  might  have  been  different  if  the  ac- 
tion hud  been  in  the  name  of  the  consign- 
ors to  the  use  of  the  railroad  company. 
.\8  it  was,  however,  the  case  hingeil  on 
the  question  of  Wireman's  authority  to 
receive  the  goods.  The  facts  were  for  the 
jurv,  and  the  testimony,  sulunltted  to 
them  with  appropriate  instructions,  fully 
jusli'ied  the  venlict. 

Judgment  allirmed. 


I'HILI.ll'S  V.  KEITZ. 


C37 


PHILLIPS  V.  REITZ. 

(16  Kan.  396.) 

Supreme  Court  of  Kansas.    January  Term,  1S70. 

Error  from  Jolinson  district  court. 

He[)l<-'vin,  broiiKht  by  Perry  Pliillipa,  for 
the  iiiidividi'd  oiie-linlf  intt-reHt  in  nine 
lieiKi  of  liorweH,  one  jdiaeton,  tw<j  huKKii'H, 
luirneHKeH,  etc.  PhillipH  claimed  to  lie  the 
owner,  nnd  entitled  to  the  poHHCHtiion  of 
the  property,  and  ullcsed  tlint  it  ha<l  been 
wronKfiilly  taken  and  was  wrongfully  re- 
tained l)y  Vick  Heitz.  lieiti! answered,  that 
the  property  in  question  was  tlie  i)roperty 
of  one  1.  N.  Phillips,  and  not  the  pro|)erty 
of  plaintiff;  that  defendant  was  sheriff  of 
.lohnson  county,  and  as  such  sheriff  be 
lind  received  anil  held  a  writ  of  execution 
to  him  duly  issued  and  delivered,  upon  a 
juddmenl  duly  recovered  in  the  .Jolinson 
county  district  court,  liy  li.  A.  I'eineinan 
&  Co.  as  plaintiffs  ajralnst  said  I.  N.  I'liil- 
lips  as  defendant,  for  $IGO.:i."i  and  cosls, 
April  l.'ith  ls74;  that  liy  virtue  of  said 
writ  of  execution  he  (  Ueitz)  as  sheriff  had 
levied  upon  Siiid  pioperty  as  the  prr>perty 
of  said  1.  .N'.  I'hillips;  that  he  found  said 
I'roperty  in  the  possession  and  under  the 
control  of  said  1.  ^.  Phillips,  and  that  he 
(the  sheriff)  had  taken  the  same,  and  now 
held  and  retained  the  pc.ssession  thereof 
as  such  sheriff,  and  by  virtue  of  said  writ 
of  execution.  Trial  at  the  .\UKUst  term 
1S74.  The  evidence  showed  that  I.N.Phil- 
lips and  one  Thomas  Muir  had  l)cen  part- 
ners, carry ini?  on  the  livery  business  in  the 
city  of  Olallio  for  a  loiifj  time;  tliat  the 
horses,  cjirriaKCs,  etc.,  levied  on  by  Sheriff 
Reitz  had  been  owned  by  said  Philiip-f  & 
Muir, and  used  in  tlieirsaid  business;  tliat 
said  1.  N.  I'hillips,  in  March  l.s74,  was 
largely  indebted,  and  suits  were  pending 
against  him;  that  his  iiomesteail,  and  all 
his  real  property  except  tlie  undivided  half 
of  the  livcry-stnlile  lot  was  moi'tgaued  ; 
that  Perry  IMiilliiis,  the  plaintiff,  was  his 
brother;  that  Perry  icsideil  on  a  farm  tea 
ndles  distant  from  Olatlii':  tliat  ontlie4tli 
of  April  hs74  said  I.  N.  Phillips  and  one  .\lc- 
Keever  went  to  the  residenc  e  of  the  plain- 
tiff, and  there  said  I.  N.  I'hillips  sold  his 
interest  in  the  livery  Ktal)le  and  stock  to 
the  rdaintiff  for  f  l,L'oo,  for  whicli  sum  tlie 
[ilRintlff  executed  his  promissory  note, 
which  was  immediately  Indorsed  to  said 
McKeever  as  collateral  security  for  the 
payment  of  the  purcliase-m<mey  of  a  farm 
sold  by  said  McKeever  to  said  I.  N.  I'liil- 
lips,  upon  which  farm  .McKeever  held  a 
mortgage  niveii  to  secure  said  iiurchase- 
money  ;  that  the  livery  stock  and  prop- 
erty was  all  at  Olathe  at  the  time,  and 
the  plaintiff  did  not  go  to  see  or  take  pos- 
se-ssion  of  it;  that  I.  N.  Phillips  and  Muir 
continued  the  livery  business  as  partners, 
but  one  witness  for  plaintiff  had  testitied 
that  plaintiff  had  employed  him  (the  wit- 
ness) to  take  charge  of  the  stock  and  at- 
tend tt>  the  iilaintiffs  Interests  in  the  liv- 
ery business.  It  alsoappenred  tliat  Feine- 
man  &  Co.  Iiail  recovereil  a  judgment 
against  1.  N.  Phillips,  April  ],'.th  1><74,  and 
an  execution  thereon  had  been  issued,  as 
alleged  in  Keitz's  answer;  that  Iteitz  had 
levied  said  execution  upon  the  property  in 
controversy    ou    the   lilUh   of   .\pril;    that 


thereuiion  I.  .N'.  P.  dispatched  a  menBen^r 
for  the  plaintiff  who  immediately  came  to 
Olathe,  and  then  (after  said  levy)  said  1. 
N.  P.  went  with  the  plaintiff  to  the  livery 
stable,  and  undertook  to  make  formal  de- 
livery of  the  property  to  the  plaintiff,  but 
they  were  notified  by  Muir  that  the  shcrlfr 
lia<l  levied  upon  the  property  and  had 
left  it  in  bis  (.Muir's)  care,  and  that  no  de- 
livery or  change  of  possession  could  be 
made;  that  after  said  levy  .\lulr  and  I.  N. 
Pliillilis  had  a  settlement  bet  ween  them- 
selves. Which  Included  partnership  ac- 
counts in  the  livery  business  down  to  the 
day  of  the  settlement.  It  olso  a|ippared 
that  I'erry  Phillips  had  olitained  posses- 
sion of  the  property,  at  thecommeni-ement 
of  the  action,  and  that  at  the  time  of  the 
trial  a  part  of  the  stock,  and  two  of  the 
carriages  were  in  the  iiossession  of  I.  N. 
Phillips.  Thematerial  part  of  theinstruc- 
tions  is  copied  Into  the  opinion.  Infra. 
The  jury  found  for  the  defen<lant,  and  as- 
sessed the  value  of  the  property  at  f7.'{2..")0. 
New  trial  refused,  oud  judgment  on  the 
verdict  in  favor  of  defendant  Iteitz  for  a 
return  of  the  property,  etc.  Phillips 
brings  the  case  here  on  error. 

John  T.  BurrlH  and  John  T.  Little,  for 
plaintiff. 

n HEWER,  J.  This  was  an  action  of  tv- 
plevin,  and  the  question  was  as  to  the  va- 
lidity of  a  sale  claimed  to  have  been  made 
by  one  I.  .V.  Pliillips  to  plaintiff.  Defend- 
ant was  sheriff  of  Johnson  county,  and 
uniler  an  execution  against  I.  N.  Phillips 
levied  on  the  property.  The  property 
consisted  of  livery  stock  in  the  city  of 
Olathe.  Plaintiff  was  a  farmer  living 
some  miles  off  in  tlie  country.  The  sale 
was  maile  at  the  farm  of  plaintiff.  He 
was  not  from  the  lime  of  the  sale  to  the 
time  of  tlie  levy  in  Olathe,  and  I.  .\.  Phil- 
lips remained  in  theactual  charge,  though, 
as  was  claimed,  as  the  agent  of  plaintilT. 
The  errors  alleged  are  in  tlie  giving  of  in- 
structions. The  two  propositions  to 
which  specific  objections  are  mn<le  are — 
1st,  "The  unex|ilalued  possession  liy  the 
vendor,  after  the  sale,  is  conclusive  evi- 
dence of  fraud. " 

2d,  "The  actual  participation  by  the 
vendee  In  the  vendor's  fraudulent  Intent, 
is  not  necessary  to  avoid  the  sale.  It  is 
enough  if  he  knew  of  sucli  intent,  or  of 
facts  sutMcient  to  excite  the  susidcions  of 
a  iirudent  man.  and  jiut  him  on  bKiuiry." 

Tliat  good  faith  is  as  essential  to  sup- 
port a  sale  like  the  one  liefore  us,  as  n 
suttieient  consideration,  will  not  be  tpies- 
tioiied.  Twyne's  Case,  ;l  Coke,  SO,  1 
Smitli's  Leaiiing  Cases,  41;;  Ha  Id  win  v. 
I'eet,  '2'2  Texas,  70S:  Chandler  v.  Van 
Itoeder,  L'4  How.  (P.  S.)  •.•■J4;  Pulliam  v. 
Newtierry's  Adin'r,  41  Ala.  llVS.  And  that 
a  continuance  of  posscsson  is  evidence  of  a 
want  of  good  faith,  as  well  as  a  want  of 
BUlficlent  consideration.  Is  settled  by  the 
statute,  (ien.  Stat.,  p.  5iM.  §  :<■  That 
(lossession  iiiav  be  retained,  and  still  then» 
be  n  valid  sale,  is  also  clear,  anil  so  In  un- 
mistakalde  language  the  court  instrucle<l 
the  jury.  And  this  instruction,  as  to  the 
effect  of  an  unexplained  po-session,  must 
be  considered  in  reference  to  and   as  quail- 


638 


PIIILLU'S  V.  IIEITZ. 


fied  by  the  other  instructions.  There  has 
been  a  vaKt  amount  of  controversy  as  to 
the  effect  ttf  a  retained  possession  lipun  an 
alleged  sale,  when  challenaeil  by  a  cred- 
itor, or  sul)8equent  purcliaser.  It  is  all 
based  upon  the  idea  that  ijossession  fol- 
lows title,  and  that  where  there  is  a  trans- 
fer of  title  there  should  be  a  change  of  pos- 
session. In  some  courts  it  has  been  held, 
that  a  failure  to  change  possession  is  so 
inconsistent  with  a  transfer  of  title  that 
it  creates  a  presumption  of  law  against 
thf  alleged  sale.  Thisijresnaiption  of  law, 
noevidence  of  thegood  faithof  tiieparties, 
and  of  the  payment  of  full  consiileration, 
can  overthrow.  In  others,  such  failure  ro 
change  possession  is  merely  evidence 
against  a  sale,  which  may  be  ex[>lained. 
The  presumption  is  one  of  fact,  and  like 
all  presuinpti(jns  of  fact  open  to  explana- 
tion by  other  testimony.  It  is  like  the 
presumption  of  guilt  which  flows  from  the 
possession  of  recently-stolen  pro|)erty.  It 
casts  upon  the  possessor  the  duty  of  ex- 
planation. (See  for  a  full  discussion  of 
this  question  and  the  authorities  there- 
on, Twyne's  Case,  and  notes  thereon,  in  1 
Smith's  Leading  Cases,  Hare  &  Wallace's 
notes,  p.  47,  and  following.)  Our  stat- 
ute has  accepted  the  latter  construction, 
and  provides  in  the  section  cited,  that 
"Every  sale  *  *  *  unaccompanied  by 
an  actual  and  continued  change  of  pos- 
session, shall  be  deemed  to  be  void, 
*  *  *  until  it  is  shown  that  such  sale 
was  made  in  gooil  faith,  and  upon  suffi- 
cient consideration."  In  other  words, 
proof  of  actual  good  faith,  and  payment 
of  sufficient  consideration,  does  away  with 
the   presumption    which   fiows   fron;  a  re- 


tained possession— shows  that  such  pos- 
session does  not  imply  a  retained  title,  or 
secret  trust — in  short,  explains  the  pos- 
session. Until  It  is  so  explained,  it  is  evi- 
dence against  the  sale;  and  unless  so  ex- 
plained, it  is  conclusive  evidence.  To  that 
extent,  and  only  to  that  extent,  do  we  un- 
derstand the  instructions  of  the  court, 
taken  as  a  whole,  to  have  gone;  and  in 
that  is  no  error.  See  upon  this,  Ayres  v. 
Moore,  2  Stewart  (Ala.)  33(5;  Peck  v. 
Land,  2  Kelly  (Georgia)  1  ;  I'leming  v. 
Townsend,  ()  (Jeorgiu,  104;  Beers  v.  Daw- 
son, 8  Georgia,  ^57;  Robinson's  Ex'rs  v. 
Robards,  15  Mo.  4.59. 

As  to  the  second  o'ojection,  the  court 
distinctly  charges  that  the  vendee  must 
be  a  party  tcj  the  fraud  to  avoid  the  sale, 
and  then,  in  another  instruction,  appar- 
ently in  explanation  of  what  was  neces- 
sary to  make  him  a  party  to  tlie  fraud, 
charged  that  it  was  enough  if  he  knew  of 
the  vendor's  fraudulent  intent,  or  of  facts 
snfticient  to  put  him  upon  inquiry.  Is 
this  error'?  We  think  not.  Knowledge 
of  facts  sufficient  to  excite  the  suspicions 
of  a  prudent  man,  and  put  him  upon  in- 
quiry, is,  as  a  general  proposition,  equiv- 
alent to  knowledge  of  the  ul'imate  fact. 
Garahy  v.  Bay  ley,  25  Texas,  (Suppt.)  294; 
Pitney  v.  Leonard,  i  Paige  ("h.  461.  And 
if  the  vendee  knew  of  tlie  fraudulent  intent 
of  the  vendor,  and  bought  with  that 
knowledge,  he  can  scarcelj-  claim  to  be  a 
bona  fide  purchaser,  for  he  was  knowing- 
ly helping  the  vendor  to  accomplish  the 
fraud  and  do  the  wrong. 

There  appearing  no  error  in  these  rul- 
ings, the  judgment  must  be  affirmed. 

All  the  justices  concurring. 


PITKIN   c.  XOVKS. 


041 


PITKIN  et  al.  v.  NOTES. 

(4H  N.  H.  294.) 

Supreme  Judlciul  Court  of  New  Hampshire. 
Coos.    Jan.,  ISG'J. 

AsHiimpMit  by  Saimiel  P.  Pitkin  niidoth- 
iTK  aKiiiiiHt  .\na  -No.vcr*  lor  ii(iii|iei'fi>riiiaiic(> 
of  a  CDiitract  to  ili'liviM-  potatoes.  Cam' 
I'everKC'd.  Del'eixlaiit,  in  ISlili.  inade  a  vcr- 
l>al  aKi'efilitMit  with  plaintiffs'  testator  to 
raise  tliree  acros  of  potatoes,  atiil  deliver 
tlieni  diiriiiK  tlie  year  at  testator's  plaee 
of  Inisiness,  f<jr  twenty  eents  a  hnsliel; 
and.  accordintc  tosoniuof  tiK'evidenee,  tins 
aKi'eenient  |)rovided  tliat  lie  sliould  do  the 
same  ill  Isoi.  Uefendaiit  raised  and  deliv 
ered  the  potatoes  in  lsi;:j,  Imt  plaintiffs 
raised  some  ([uestion  as  to  the  price  to  he 
|)aid,  claiiiiliifi  that  the  previous  a^ree- 
inciit  was  not  hindiii^  because  not  in  writ- 
ing. They  (inally  aitreed  in  .laniiary,  1S(;4, 
to  pay  twenty  cents  for  the  ls(j;i  potatoes 
if  defendant  would  raise  and  deliver  the 
same  ijnantity  in  ls(j4.  This  nctiun  was 
brouKht  for  failure  to  deliver  the  potatoes 
for  IS(;4. 

Ladd,  for  plain  tiff.'*.     Uay,  fordefendant. 

liELLOW.S,  .1.  If  the  bargain  in  the 
sprint:  of  ls(i:'  was  for  the  potatoes  of  that 
year,  and  also  for  the  year  lsri4.  it  would 
be  within  the  statute  of  frauds,  as  to  the 
potatoes  of  the  last  year  at  least,  as  an 
ay:reenient  not  tt)  be  iieriorined  in  one 
year.  Kniery  v.  .Smith.  M't  S.  11,  l.")l.  The 
(luestioii  then  is,  whether  a  valid  af;ree. 
meat  for  the  crop  of  Istil  was  made  in 
.lannary  of  that  year;  and  we  propose  to 
inquire  in  the  first  place  whether  such  a 
contract  as  is  stated  in  the  testimony  of 
the  plaintiff  is  to  be  rf'irarded  as  a  con- 
tract for  work,  labor  and  materials,  or  a 
contract  of  sale  of  the  crop  of  potatoes. 
If  the  foriiK  r.  it  is  not  witiiin  the  statute 
of  frauds,  but  if  t  he  latter  it  is. 

It  is  nianilist  fi'oin  the  natureof  tlipcnse 
that  it  must  be  very  ditlicult  to  draw  a 
line  of  distinction  between  these  two 
classes  lit  contracts.  In  some  instances 
the  distinclions  must  be  very  nice,  and  it 
is  to  be  expected  that  wesli.juld  find  the 
authorities  not  alloKelher   harmonious. 

It  is  now  settled,  however,  that  a  con- 
tract for  the  sale  of  noods  is  not  without 
the  statute  because  it  is  executory,  and  it 
is  well  settled  that  a  contract  for  vvork 
anil  l.'iboraiid  materials  found  is  not  with- 
in the  slatnte. 

lu  the  early  Enslish  cases  it  was  lield 
that  a  contract  for  the  sale  of  articles  to 
be  afterwards  manufactured  and  delivered 
was  not  within  the  statute;  as  in  Towers 
V.  Osborne.  1  Str.  Iteii.  ."idli.  where  defend- 
ant bespoke  a  chariot;  and  so  of  a  coii. 
tract  to  deliver  wheat  m.-t  then  threshed, 
as  ill  ("laylon  v.  .\ndrews,  4  liiirr.  '.'1(11. 
In  both  of  these  cases  the  dtcision  went 
upon  the  )i>'<:uiid  that  the  contract  was 
execulory.  I'.ut  these  cases  weresoon  aft- 
er (lualilied  by  decisions  holding  that  con- 
tracts of  sale  thi>iii;li  executor.v  were  with- 
in the  statute.  Koadeau  v.  Wvatt.  •-'  II. 
BIk.  o:!,  and  Cooper  v.  Klston,  7  T.  U.  14; 
and  yet  the  results  reached  in  Towers  v. 
Osborne  and  Clayton  v.  Andrews  have, 
LAW  SALha — 41 


been  in  some  caHen  reooKnlzed  an  correct, 
although  upon  a  different  );roiiiiil:  name- 
ly, thai  the  articles  were  not  exl».tln«  at 
the  time  of  the  barKaiu,  and  so  incapable 
of  delivery  and  acceptance;  as  In  (iruves 
V.  IJuck,  y  M.  \  S.  17s;  2  sturkie  Evl.  008, 
and  cases  citid  in  note  C. 

Hut  in  tiarbiitt  v.  Watson,  5  B.  &  AM. 
<il:i.  it  wa-i  held  that  a  contract  to  sell  lUO 
sacks  of  flour,  at  a  price  fixed,  to  be  nady 
in  three  weeks,  was  within  the  statute, 
thouKii  the  flour  was  not  then  ground. 

Of  the  sail, n  character  is  Smith  v.  .Sur- 
man.  ;»  li.  i  C.  .")iil.  where  it  was  decided 
that  a  bargain  for  certain  limber  tree* 
Krowinu  o;)  the  owner's  land  al  a  fixed 
price  p-r  foot,  was  a  contract  for  t  be  sale 
of  Koods,  and  within  thestiitute,  iillliou;;li 
to  be  ;-ut  afterwards  li.\  the  seller;  liolil- 
iiiR  that  wlien  cutting  them  he  was  doini; 
work  fur  himself  and  not  for  the  buyer. 
Littledale,  .1.,  holds  that  where  the  cori- 
trai  tiiiir  parties  cont.-mplate  a  sale  of 
Kooils.  althoutfh  at  the  time  of  making 
Ihe  coiilract  the  subject  mat ter  does  not 
exist  as  t^ooils,  but  is  to  be  converted  In- 
to that  state  by  the  eeller's  lu'stowInK 
work  and  labor  on  his  own  raw  materi- 
als, that  is  a  case  witliin  the  statute;  and 
he  says  further  th.it  it  is  sullicient.  II  at 
the  completion  of  the  contract  the  siibjirt 
matter  be  Koods,  wares  and  laerchnndiHe: 
and  Parke.  J.,  says  the  true  <|uestioii  In 
such  cases  is  whether  the  contract  be  sub- 
stantially a  con  tract  for  tlie  sale  of  ^ixxIh, 
or  for  work  aud  labor  and  materlalH 
found. 

These  two  last  cases  modify  materially 
the  doctrine  of  Groves  v.  I'.uck,  and  the 
earlier  cases  of  Towers  v.  OsOorne  and 
(,'layton  v.  Andrews,  and  hold  that  It  is 
not  essential  that  tlie  K""'Is  be  capable 
of  delivery  at  the  niakiiii;  of  the  contract, 
to  brin;r  it  within  Ihe  statute.  So  the 
fart  that  the  coods  are  to  be  traiisporteil 
to  another  place  and  there  delivered  iloes 
not  take  the  case  out  of  the  statute. 
Kent  V.  lluskinson.  3  I!.  &  P.  2X!,  and  As- 
tey  V.  Kmery,  4  M.  Ac  S.  'Ji;!'. 

The  weight  of  American  authority  Ik 
in  accordance  with  the  doctrine  of  (inr- 
buft  V.  Watson.  .'>  P.&  Aid. id:!,  and  Smith 
V.  Snnnan.  '.I  I!.  &  C.  .■)(il,  that  the  niei-e 
fact  that  the  (joods  are  not.  at  the  mak- 
ing of  the  contract,  in  the  condition  in 
which  they  are  to  be  when  delivered,  iloes 
not  take  n  case  out  of  the  statute. 

If.  however,  a  person  contract  to  m«n- 
ufactiire  and  deliver  al  a  future  time  cer- 
tain >;i)ods.  at  prices  then  lixed,  or  at  rea- 
sonable prices,  the  essence  of  the  njiree. 
meat  t)einK  that  he  will  bestow  his  own 
labor  and  skill  u|ion  the  maiiiifucture,  it 
is  held  not  lo  be  within  Ihe  statute.  If 
on  the  other  hand  the  barKala  be  to  de 
liver  jroods  of  a  certain  description  at  n 
future  time,  and  they  are  not  exi»tla»r  at 
the  time  of  the  contiact.  but  the  seller 
does  not  sti,'inlate  to  maiiiifact  ure  them 
himself  or  procure  a  pnrlicubir  person  to 
do  so,  the  contract  is  within  the  statute. 
The  distinction  Is  that  in  the  one  ca»p 
tlie  p.-irty  sti|iulates  that  be  will  himselt 
manufacture  the  article  and  the  liuyer  h/iK 
the  ri>;lit  to  rci|iiire  him  to  dti  It.  and  can- 
not be  ciiiiipelled  to  take  one  as  Kood  or 
even    better   if  made   by  aaolher,  while  to 


r>\2 


PITKIN   0.  NOYES. 


the  other  case  the  Heller  only  afrrees  to 
Mfll  and  deliver  the  article,  and  Ih  nnder 
no  obligation  to  make  it  hiniseif,  but  may 
jniri'liase  it  of  another. 

This  in  tlie  doctrine  laid  down  by  .Shep- 
ley,  J.,  in  llinlit  v.  Hipley  et  al.,  1!)  Maine 
livp.  187,  wliere  the  distinction  between 
tlie  cases  is  well  ex|)laiued.  and  the  doc- 
trine has  been  since  followed  by  the  Maine 
courts,  Abbott  v.  (Jilchrist  et  al.,  :iS  Maine 
2(i();  Fickett  v.  Swift. -11  Maine  (iS;  and  Ed- 
wards V.  Grand  Trunk  Hallway  Co..  4S 
Maine  ail).  Tliis  doctrine  of  Higlit  v. 
Kijjiey  is  recosniited  as  sound  by  Prof. 
Parsons  in  his  work  on  Contracts,  '2il  vol. 
;i;W,  where  in  a  note  the  authorities  are  col- 
lected. 

This  distinction  is  also  recosnized  in 
Massachusetts.  In  Gardner  et  al.  v.  .loy, 
a  Met.  ITi),  Shaw,  ('.  .!.,  lays  it  down  thus: 
"If  it  is  a  contract  to  sell  and  deliver 
Koods,  wlietlier  they  are  then  completed 
or  not,  it  is  witliin  tlie  statute.  But  if  it 
is  a  contract  to  make  and  deliver  an  ar- 
ticle or  (juautit.v  of  Koods  it  is  not  within 
the  statute."  Here  the  contract  wa.s  for 
one  hundred  boxes  of  candles  b.v  a  manu- 
facturer, and  although  the  candles  were 
not  then  made  it  was  held  that  the  con- 
tract was  within  the  statute,  there  beiiiK 
no  stipulation  b.y  the  manufacturer  to 
make  them. 

In  Mixer  v.  Howarth,  21  Pick.  205.  il 
was  held  that  an  agreement  by  defendant 
to  build  a  carriaf^e  for  the  plaintiff,  or  to 
finis!)  one  for  him  from  materials  partly 
wrought,  was  not  within  the  statute;  1) 
being  lield  b.y  Shaw,  C.  J.,  that  a  contract 
to  sell  an  article  then  e.xistins,  or  which 
the  vendor  nsuall.v  has  for  sale  in  the 
course  of  bis  business,  is  within  the  stat- 
ute: but  it  is  otherwise  if  the  agreement 
by  a  workman  be  to  [lut  materials  togeth- 
er and  construct  an  article  for  theem- 
plo.yer,  whether  at  an  agreed  price  or  not. 

The  saLne  general  doctrine  is  recognized 
in  Spencer  v.  Cone  et  al.,  1  Met.  28;J,  hold- 
ing that  an  agreement  to  make  certain 
machines  for  another  at  a  specified  price  is 
not  within  tlie  statute,  but  an  agreement 
for  labor  and  materials.  The  distluction 
is  also  recognized  in  Waterman  v.  Meigs 
et  al.,  4  Cush.  4'.)'.),  and  in  Lamb  v.  Crafts, 
12  Met.  :^5(i. 

In  New  York  the  distinction  is  fully  rec- 
ognized between  an  agreement  fortlie  sale 
and  deliver.v  at  a  future  day  of  articles 
then  existing,  and  an  agreen^ent  to  sell 
and  deliver  articles  not  thus  manufactured, 
but  to  be'made  afterwards,  holding  that 
the  latter  are  contracts  for  work  and  la- 
bor and  materials  found,  and  not  within 
ithe  statute;  but  the  N"W  York  cases  do 
not  appear  to  maik  the  difference  between 
tlie  contract,  of  a  party  to  manufacture 
and  deliver  an  article,  and  his  contract  to 
deliver  it  merely,  whether  made  l)y  himself 
or  another.  A  contract  of  sale  though  ex- 
ecutory is  held  to  be  within  the  statute. 
Bennett  v.  Hull,  10  .lolins.  :W4 ;  Jackson  v. 
Covert,  ;')  Wenil.  141. 

The  cases  that  hold  that  a  contract  to 
make  an  article  is  not  within  the  statute 
are  Crooksluink  v.  Burrell,  IS  Johns.  .5s, 
which  was  an  agreement  to  make  the 
w^oodwork  of  a  wagon;  Sewall  v.  Fitch, S 
Cow.2l."i,  which  was  a  contract  for  nails  of 
a   particular  manufacturH,  but    not   then 


made;  Robertson  v.  Vaughn,  5  Sandford, 
1.  which  was  a  contract  to  make  and  de- 
liver one  thousand  molasses  shooks  at  a 
fixed  price,  which  was  decided  not  to  be 
within  the  statute,  upon  the  authorit.v  of 
Sewall  v.  Fitch.  Duer,  J.,  who  ga ve  the 
opinion,  thought  the  case  to  be  within  the 
niisehiefs  of  the  statute  and  was  disposed 
to  question  the  earlier  eases. 

So  in  Bronson  v.  Wiman,  10  Barb.  406, 
where  it  was  lield  that  a  contract  for 
flour  to  be  ground  from  wheat,  bargained 
for,  but  not  then  received,  is  not  within 
the  statute. 

So  in  Donovan  v.  Willson,  20  Barb.  l:W, 
there  was  a  contract  to  deliver  at  afuture 
day  an  article  to  be  nianufactureil  b.v  de- 
fendant, and  it  was  held  not  to  be  within 
the  statiite. 

So  is  Parker  v.Schenok,  28  Barb.  38,  and 
Mead  v.  Case,  33  Barb.  202,  where  the 
agreement  was  to  finish  a  monument, 
with  the  inscription,  and  dtiliverit  to  tlie 
other  (lart.v. 

In  most  of  the  cases  the  part.v  himself 
agreed  to  manufacture  the  goods,  and 
that  would  bring  them  witliin  the  doc- 
tiine  of  Higlit  v.  Itiple.v,  1!(  Maine,  1:17,  be- 
fore cited,  although  the  distinction  does 
n(jt  seem  to  be  adverted  to. 

In  Itovvtis  V.  Itoss,  2:i  Wend.  270.  a  con- 
tract for  the  sals  of  seven  hundreil  bushels 
of  wheat,  part  of  which  was  yet  to  be 
threshed  and  the  rest  to  be  cleaned  more 
thoroughl.v,  and  all  to  be  delivered  in  six 
days  at  a  price  fixed,  was  held  to  be  a 
contract  for  the  sale  of  goods,  and  within 
the  statute;  Covven,  J.,  dissenting  upon 
the  ground  that  the  (juestion  wjis  settled 
b.v  the  early  English  and  New  York  cases; 
but  sa.ying  that  were  it  an  o|jen  ques'ion 
he  would  not  deny  that  a  contract  to 
manufacture  and  sell  woulii  more  correct- 
ly be  considered  a  sale  within  the  statute. 
Tills  ease  falls  within  the  princi(de  of 
(larbutt  V.  Watson.  .5  B.  &  Aid.  (ii:!,  and 
Smith  v.  Surinan,  '.)  B.  &  C.  .'')(;l,  before  cit- 
ed, where  something  was  to  be  done  by 
the  seller  to  perfect  the  goods  before  deliv- 
ery 

In  Connecticut  it  was  held  that  an  agree- 
ment to  deliver  to  a  part.v  one  hundred 
sewing  machines  of  a  certain  description, 
at  a  time  and  place  (Ksignated,  on  condi- 
tion that  a  part  of  them  not  then  com- 
pleted were  finished  in  season  b.v  a  third 
person  who  worked  in  stller's  shop  and 
with  his  material.-i.  was  acoiitract  of  sale, 
and  not  for  the  manufacture  of  the  ma- 
chines, but  even  if  it  i\  ere  otherwise  as  to 
the  part  not  completed,  sixty -four  in  num- 
ber, still  as  the  contract  was  entire  and 
as  it  was  clear  that  in  respect  to  the 
thirt.v-six  it  was  ;>  sale,  the  whole  it  was 
said  must  be  regarded  as  within  the  stat- 
ute.    Atwaler  v.  Hcmgli,  1".)  Conn.  .')0S 

In  Phippsv.McKarlane.;!  Minn,  lol),  ((iil. 
()1,)  there  was  an  agreement  to  fiir.iish 
materials,  and  fit  them  fo:- a  steam  mill, 
wiiicli  was  portable:  and  it  was  held  that 
it  was  not  a  contract  of  sale;  but  it 
blends  together  the  price  of  the  thing, 
and  compensation  for  work  and  latior  and 
materials,  and   is   not  within  the  statute. 

In  our  own  courts  in  Oilman  et  al.  v. 
Hill,  30  N.  H.  31 1,  vv'here  there  was  a  con- 
tract made  in  .\ugust  to  sell  to  the  plain- 
tiff   all   the  sheep   pelts  taken   off  by  the 


riTKIN  c.  XOYE.S. 


643 


Heller  who  wbh  n  butolier,  between  the 
Hrst  of  .liilv  niicl  the  (irHt  of  (k-toher.  it 
waH  helil  thiit  in  ri'spect  to  till,  ati  well 
those  not  then  taken  off  aH  those  that 
were  ready  for  delivery,  it  w;ih  a  contract 
of  Kale  of  };ooiIm,  and  not  for  work  and  l)>- 
iior.  and  wan  within  the  Ktatntc. 

1::  2  Kent's  ('i)innientarloH  004  and  511, 
note  b,  the  earlier  lOiiKli^h  doctrine  is  rec- 
ognized th'it  if  the  article  sold  existed  at 
the  time  in  solido,  and  was  capable  of 
delivery,  the  contract  was  within  the 
statute;  bnt  otherwise  if  it  was  to  lie  aft- 
erwarils  inannfaitiired  or  prepared  for  ile- 
livery  liy  work  and  labor. 

And  much  the  same  is  Story  on  Con.  sec. 
787,  and  note.  In  Browne  on  Frauds,  this 
subject  is  well  considered,  and  the  conclu- 
sion reached  is  e.xpressed  in  section  ■Mix, 
that  if  the  contract  be  essentially  a  con- 
tract for  the  article  manufactured  or  to 
he  manufactured,  the  statuteapiilies  toil: 
but  if  it  is  for  the  manfncture,  for  the 
work,  labor  and  skill,  to  be  bestowed  in 
produriuf;  the  article,  tiie  statute  does  not 
ajiply. 

L"iion  the  whole  we  are  satisfieil  that  if 
the  contract  lie  substantially  for  the 
Koods.  it  is  within  the  statute,  whether 
they  are  then  manufactured  or  not :  but 
It  is  otherwise  if  the  contract  be  to  manu- 
facture and  deliver  the  noods,  that  is,  if 
the  labor  and  skill  of  the  seller  is  stipulat- 
ed for  and  makes  pai-t  of  the  contract. 

It  is  (piite  obvious  that  the  labor  and 
skill  of  a  workman  may  be  bargained  for 
in  this  way  as  well  as  in  any  other— his 
compeusation  beinji'  in  the  price  of  the  ar- 
ticle he  makes;  and  the  only  (|uestioii  in 
the  [larticular  case  is  whether  the  skill 
and  labor  of  that  workman  was  especial- 
Ij'  contracted  for,  so  that  the  employer 
was  entitled  to  that,  and  could  be  obliged 
to  take  no  other. 

In  ainny  cases,  then,  there  could  be  !io 
diliiculty  in  determining  whether  the  la 
lior  and  skill  of  the  particular  pers<in  was 
of  the  essence  of  the  coritiaet,or  whether 
it  was,  in  the  conteiii illation  of  the  par- 
lies, substantially  a  sale. 

If  an  artist  contract  to  paint  the  por- 
trait of  another,  'lU.houKh  he  is  to  find  the 
canvas  and  paints,  it  would  readily  be 
cor.ccded  that  the  substance  of  the  con- 
tract was  for  the  skill  and  labor  of  the 
particular  artist.  .So  if  a  printer  contract 
to  print  a  book  lor  an  author,  tliou;rh  he 
is  to  furnish  the  paper  an<l  ink.  as  held  in 
(lay  V.  Cates,  1  11.  &  N.  ?:!.  .Soifarar- 
pentcr  a^ree  to  erect  a  bnildiiiK  for  anoth- 
er upon  his  land  and  tind  all  the  materials, 
it  is  a  contract  for  work  and  liibor  .ind 
materials,  ("ourtriuhl  v.  Stewart.  I'.l  I!arb. 
4.V>.  .So  it  would  lie  if  a  person  carry 
cloth  to  a  tailor  who  agrees  to  make 
a  coat  for  him,  oven  if  the  tailor  is  to  find 
the  tiiiniiiiiiy,s. 

The  contract  may  be  for  work  and  labor 
simply,  for  work  and  labor  and  materials, 
or  for  the  sale  and  delivery  of  uoods, 
wares  and  merchandise.  In  resp-ct  to  the 
two  last  till- line  of  seiiaration  must  often 
be  indistinct  aul  dillicult  to  trace;  and 
we  are  not  alile  to  discover  any  estab- 
lished rule  or  criterion  by  which  to  dis- 
tlnuuish  them  rcMdily. 

Tlip  rule  estalilished  in  New  York,  name- 
ly,  that,   if   the  floods  contracted  for  are 


not  then  in  existence  but  are  still  tube 
manufactured,  it  is  to  be  considered  as  a 
contract  for  w<irk  and  labor.  orii;inated 
at  an  early  period  in  a  diHp.jHiti<in  of  the 
KiiKlish  courts  to  liaiitthe  operation  of 
the  statute  of  frauds,  and  miiHt  olivlouHly 
exclude  from  the  operation  of  that  statute 
a  larne  class  of  cases  that  are  within  Its 
mischiefs,  and  at  the  same  timt-  are,  in 
substance,  contracts  of  sale. 

On  the  other  hand  the  doctrine  o(  Llt- 
tledale,  .1.  in  Smith  v.  Surmun, '.)  H.  &  C. 
."itil,  is  that  if  the  parties  contemplate  a 
sale  of  Koods,  although  the  subject  mat- 
ter at  the  lime  of  making  thecontruct  doed 
not  exist  In  uoods,  lint  is  to  be  converted 
into  that  state  liy  the  seller  best.iwinj; 
work  and  lalior  on  his  own  raw  materi- 
als, it  is  a  case  within  the  statute — hold- 
inir  that  it  is  siillicient,  if  at  the  time  of  the 
completion  of  the  contract  the  subject 
matter  be  (joods,  warps  anil  merchandise; 
and  thi-i  i;t-iieral  doctrine  seems  to  be  rec- 
oRuized  in  Watts  v.  Friend.  1(»  H.  &  C.  446. 
per  Lord  Tenterdeii.  So  in  he*-  v.  (iriflin.l 
IJest  &  Smith.  Kxcheii.  liep.,  27-'.  {T-i  I.'.  .S. 
1)1^.  277.)  it  was  held  that  a  contract  to 
make  a  set  of  artitlcial  teeth,  and  lit  them 
to  the  mouth  of  the  other  party  who  iliel 
before  they  were  con.pleted,  was  a  cnn- 
ti-actfor  the  sale  of  goods  and  within  the 
statute. 

This  doctrine  of  Littledale,  J.,  lirinKs  us 
rounil  to  the  i|uesti<in  whether  in  thecon- 
templatliin  of  the  parties  the  contr.-ict  was 
substantially  a  contract  for  the  sale  of 
goods,  or  for  work  and  labor. 

In  Massachusetts  a  distinction  is  made 
between  a  contract  for  the  sale  and  deliv- 
ery of  articles  which  the  seller  is  habitual- 
ly making,  and  a  contract  to  make  an  ar- 
ticle pursuant  to  the  agreement,  the  for- 
mer tieing  regarded  as  a  contract  of  sale, 
but  the  latter  n<it.  Lamb  v.  Crafts.  12 
Met.  :i."i:!.  'I'his  must  be  because  it  was 
supposed  to  bear  on  the  i|Uestioii  whether 
the  stipulation  that  the  party  tiiinself 
should  make  the  goods  was  of  the  essence 
of  the  contract,  and  so  a  contract  for 
work  anil  labor. 

As  a  rule  of  law.howcTpr.it  does  not 
strike  us  as  afftirding  a  very  satisfactory 
distinction  between  a  contract  of  sale, 
anil  a  contract  for  work,  lal'or  and  mate- 
rials. If  it  be  of  the  substance  of  the  con- 
tract that  the  niauufactnrer  shall  himself 
apply  his  own  labor  and  skill  to  the  nian- 
i.facfure  of  the  goo.ls  for  the  buyer,  who 
is  n.it  lioiind  to  receive  any  other,  it  can 
make  no  difteivnce  whether  the  goods  art* 
habitually  made  by  such  manufaclurer  or 
not.  If  he  does  habitually  make  such 
goods  for  sale,  he  may  nevert lieless  con- 
tract to  bestow  his  own  lalmr  and  skill  in 
making  them  for  a  particular  person,  and 
the  real  iiniuiiy  is  whether  in  a  given  in- 
stance he  has  done  so  or  not. 

In  the  absence  of  explicit  and  ilistlnct 
terms,  the  circumstances  may  be  such  as 
to  indicate  cleat  ly  that  the  lalior  and  xklll 
of  the  particular  artist  was  especially 
stipulated  for.  as  in  the  case  of  an  »grp«>- 
ment  to  paint  a  portrait,  to  execute  a  mar- 
ble statue,  or  any  other  work  of  hiKh 
art.  In  such  cases,  and  especially  where 
the  mateiials  used  in  the  work  are  of 
slicht  importance  compared  with  the  la- 
bor and  skill  of  the   artist.   It    might    well 


644 


PITKIN  V.  NOYES. 


be  mi|iposp(1  that  the  skill  and  labor  was 
of  the  esseiiite  of  the  contract,  and  auch 
seems  to  have  licen  the  uphiiou  of  Pollock, 
V.  B.  in  Clay  v.  Yates.  1  H.  &  N.  73,  before 
cited. 

On  the  other  hand  If  tlie  contract  bs  for 
goods  which  arc  usually  in  the  market, 
and  there  is  nothing  in  the  terms  used  or 
in  the  nature  of  the  case  to  indicate  that 
the  labor  and  skill  of  tlie  contractor  was 
stipulated  for  especially,  it  must  be 
deemed  a  contract  of  sale  and  within  the 
statute. 

If  the  article  to  be  manufactured  or  the 
crop  to  be  raised  is  not  a  marketable 
c«)nimodity,  but  of  value  chielly  to  the  one 
who  contracts  for  it,  that  circumstance 
has  l)een  supposed  to  indicate  that  the  la- 
bor and  skill  of  the  other  was  bargained 
for.  Browne  on  Statute  of  Frauds,  sec.  SOS, 
citinK  Cason  v.  Cheely,  G  Geo.  Hop.  5,i4, 
which  is  based  upon  such  a  distinction. 
Whether  such  a  distinction  asa  ruleoflaw 
is  well  founded  or  not,  it  certainly  pre- 
sents a  strong  equity  in  favor  of  holding 
such  cases  as  not  to  he  within  thestatute. 

In  the  case  before  us  the  (luestion  is 
whether  the  essence  of  the  contract  was  a 
sale  of  the  expected  crop  of  potatoes  at 
twenty  cents  a  bushel,  or  a  stipulation  for 
defendant's  work  and  labor  and  mate- 
rials in  producing  them.  The  proof  is  of 
an  agreement  bi'  defendant  to  raise  three 
acres  of  potatoes  in  ISGI,  and  deliver  them 
at  the  plaintiffs'  mill  at  twenty  cents  the 
bushel;  was  it.  then,  an  essential  part  of 
the  contract  that  the  defendant  should 
himself  raise  tlie  potatoes?  If  it  was,  it 
would  seem  from  the  principles  stated 
that  the  contract  cannot  be  regarded  as 
a  sale. 

In  the  case  of  Gardner  et  al.  v.  Joy,  9 
Met.  177,  the  plaintiffs  inquired  of  the  de- 
fendant what  he  would  lake  for  sperm 
candles,  and  upon  being  told,  said  they 
would  take  one  liundred  boxes,  which 
was  assented  to;  defendant  «  ho  was  a 
manufacturer  then  said  they  were  not 
then  manufactured,  but  he  should  or 
would  manufacture  and  deliver  them  in 
the  course  of  the  summer.  The  court  held 
this  to  be  a  contract  for  the  sale  of  goods 
within  the  statute;  and  that  what  was 
said  as  to  the  suiisecjuent  manufacture 
hud  reference  only  to  the  time  of  delivery, 
and  that  the  ilelivery  of  good  merchanta- 
ble candles  of  another  person's  manufac- 
tu7'e  would  have  been  a  compliance  with 
the  contract. 

In  the  case  before  us  was  the  defendant 
bound  himself  to  raise  three  acres  of  pota- 
toes, or  only  to  deliver  good  merchanta- 
ble potatoes  in  quantity  equal  to  the  or- 
dinary product  of  three  acres?  Or  in  oth- 
er words  was  the  stipulation  in  respect 
to  the  three  acres  introduced  only  to  de- 
termine the  quantity  to  be  delivered,  and 
not  to  oblige  tlie  defendant  to  raise  them  ? 

It  is  obvious  that  the  plaintiffs  might 
have  an  interest  in  stipulating  that  de- 
fendant should  himself  raise  the  potatoes, 
and  as  the  terms  of  the  contract  arc  ex- 
l)licit  that  he  should  do  so,  we  cannot  be 
justified,  as  the  evidence  now  stands,  in 
holding  that  thi.s  is  not  an  essential  part 
of  the  agreement. 


We  are  aware  of  the  case  of  Watts  v. 
Friend,  10  B.  &  C.  -14(1,  before  cited.  There 
A.  agreed  to  supply  B.  with  a  quantity  of 
turnip  seed,  and  B.  agreed  to  sow  it  upon 
his  ovvn  land  and  sell  the  crop  to  A.  at 
£1,  Is.  per  bushel,  and  it  was  hold  that  in 
good  common  sense  tliis  must  bo  consid- 
ered as  substantially  a  contract  for  goods 
and  chattels  for  the  thing  agreed  to  l)e  de- 
livered would  at  the  time  of  delivery  be  a 
personal  chattel. 

Tl'e  reason  assigned  here  for  this  deci- 
sion would  apply  to  all  cases  where  the 
labor  and  materials  employed  were  to  re- 
sult In  goods  anil  chattels,  the  price  oi* 
which  was  to  be  the  measure  of  comjien- 
sation,  and  without  regard  to  the  ques- 
tion whether  in  the  contemplation  of  the 
parties  labor  and  skill  were  especially  con- 
tracted for  or  not,  and  for  the  reasons  al- 
ready suggested,  we  are  not  prepared  to 
assent  to  that  view. 

Upon  the  whole  our  conclusion  on  thi» 
point  is  that  as  the  question  is  a  mixed 
one  of  law  and  fact.  It  will  be  projjer  to 
leave  it  to  the  jury,  in  view  of  all  the  cir- 
cumstances of  the  case,  to  lind  whether 
the  contract  was  essentially  for  the  work 
and  labor  and  materials  of  the  defendant 
in  raising  the  potatoes,  so  that  he  was 
liound  himself  to  raise  them  ;  or  whether 
it  was  substantially  a  sale  of  potatoes, 
which  he  might  raise  himself,  or  procure 
by  purchase  or  otherwise.  If  it  was  the 
former  it  would  not  be  within  the  statute 
of  frauds;  but  if  the  latter  it  would  l)e. 

Another  question  raised  is  in  regard  to 
the  coDsideration  for  defendant's  agree- 
ment. If  the  i)laiiitiffs  agreed  to  take  and 
pay  for  the  crop  of  i)otatoes  at  the  price 
fixed,  that  of  course  would  be  a  sufficient 
consideration.  We  are  of  the  opiLiion  al- 
so, that  the  cnmpromise  of  doubtful  and 
conflicting  claims  is  a  good  and  sufficient 
consideration  to  uphold  an  agreement.  I 
Parsons  on  ('on.;3G4:  Chitty  on  (\)n.  sec. 
42,  and  note  1  and  cases;  Longridge  v. 
Dorville,  r>  ii.  &  Aid.  117;  Crowther  et  al. 
V.  Farrer,  15  A.  &  E.,  N.  S.,  Queen's  Bench 
Rep.  677;  Barlow  v.  Ocean  Ins.  (.'o.,  4  Met. 
270:  Tuttle  V.  Tuttle,  12  Met.  551;  Craus 
V.  Hunter,  2S  N.  Y.  .389:  Gates  v.  Shutts,  7 
Mich.  127;  Union  Bank  of  Georgetown 
V.  (Jeary,  5  Peters  99;  Fleming  v.  Ramscv, 
46I'enn.  St.  Rep..  252;  Parker  v.  Wav,  15 
N.  H.  45;  Burnham  v.  Dunn,  35  N.  H.  .560. 

The  law  indeed  highly  favors  the  com- 
promise of  doubtful  claims  ;  but  the  sur- 
render or  discharge  of  a  claim  which  is 
utterly  without  foundation  uud  known  to 
be  so,  is  not  a  good  consideration  for  a 
promise;  Kidder  v.  lilake,  45  N.  H.  330, 
and  cases  cited  :  but  it  is  otherwise  if  the 
claims  are  doubtful  and  so  understood  by 
the  parties,  and  in  such  a  case  the  consid- 
eration will  not  be  defeated  by  showing 
that  in  fact  no  valid  claim  really  existed. 

In  the  case  before  us  it  does  not  appear 
that  there  was  any  doubt  about  the  con- 
tract for  the  first  year,  and  if  not,  an 
agreement  to  perform  it  would  be  no  valid 
consideration  i<.;v  a  new  promise.  What 
the  evidence  on  that  point  was,  however, 
we  do  not  know  and  the  only  questioa 
here  is  as  to  the  law  in  such  cases. 

Case  dii-'C barged. 


II 


M 


I'OPK   c.  ALUS. 


647 


roPE  Gt  al.  T.  ALLIS. 
(G  Sup.  Ct.  Ucp.  «9,  115  U.  S.  303.) 

.Supiciiu'  Cciurt  of  llic  liiiti'il  States.      Nov.  9, 

18S.J. 

In  error  to  the  circuit  court  of  the  I'littoil 
States  for  the  eu.sierii  district  of  WiHcoii- 
.sin. 

Tlie  fnctH  fully  niipoar  in  the  following 
Htatciiicnt  liy  WOODS,  J.: 

Kdwjinl  P.  Allis,  the  defeiMlnnt  in  error, 
was  the  plaiiitifl  in  the  circuit  court.  He 
brouirlit  liis  suit  toreiover  from  the  de- 
fendants 'riioinas  .1.  I'i)|)e  and  .laineH  K. 
I'ope,  now  tile  plaintiffs  in  error,  the  suin 
of  f  IT.NJit,  tlie  price  of  ."jlin  tons  of  pi;r-iron, 
which  liealleKed  lie  liad  hou^'it  from  tliem 
and  paid  for.  iiut  wliicli  lie  icIuhimI  to  ae- 
cei)!  because  it  wasnotof  theiiiiality  which 
thedefendants  had  agreed  tofurnisli.  The 
plaintiff  also  denianiied  .fl.T.'iO  freight  on 
the  iron,  which  he  alleged  he  had  paid. 
The  (acts  appeariiiir  upon  the  record  wi're 
as  follows:  The  plaintiff  caniecl  on  the 
business  of  on  iron-founder  in  .Milwaukee. 
Wisconsin,  and  the  defendants  were  bro- 
kers in  iron  in  the  city  of  New  York.  In 
the  month  of  January.  INM),  by  corre- 
Bpondence  carrieil  on  b.v  mail  and  lele- 
;;rapli,  the  ilefendan  ts  agreed  to  sell  and 
deliver  to  the  plaintiff  .')l)0  tons  of  No.  1 
p.xtra  American  and  "(M)  tons  No.  1  extra 
(jlensarnock  (Scotch)  ])i:;:-iron.  The 
Aniericaii  iron  was  to  be  delivered  on  the 
cars  at  the  furnace  bank  at  ('oiday,  I'enn- 
Bylvania,  and  the  Scotch  at  the  yard  of 
the  defendants  in  .New  York.  I'.y  a  subse- 
quent correspondeiicebet  ween  the  plaintiff 
and  the  defendants  it  fairly  appeareil  that 
the  latter  asrrced  to  ship  the  iron  for  the 
])laintiff  at  Klizabcthport,  New  .Jersey.  It 
was  to  be  shipped  'is  early  in  the  spriii}; 
as  cheap  freiii:lits  could  be  had,  cousiuucd 
to  the  National  ExchaiiKe  liank  at  Mil- 
waukee, which,  in  behalf  of  the  plaintiff, 
astreed  to  pay  for  the  iron  on  receipt  of 
the  bills  of  lading.  Th;it  quanlity  of 
Ainericjin  iron  was  landed  at  .Milwaukee 
and  delivered  t<i  the  plaintiff  about  .July 
l.'ith.  Before  its  arrival  at  Milwaukee  the 
plaintiff  had  not  only  paid  for  the  iron, 
but  also  the  freiuht  "from  C'oplay  to  Mil- 
waukee. Soon  afrer  tl.e  arrival  in  -Mil- 
waukee the  plaintiff  examined  the  :'>(M)  tons 
American  iron,  to  which  scdely  the  con- 
troversy in  this  case  referred,  ami  refused 
to  accept  it,  on  the  ground  tliatitwas 
not  of  the  tirade  called  fur  by  the  eon- 
lract,aiid  at  once  frave  the  defendants  no- 
tice of  the  fact,  and  that  he  held  tlie  Iron 
subject  to  their  order,  and  brought  this 
Biiit  to  recover  the  price  of  the  iron  and 
the  freiji'ht  thereon. 

The  defenses  relied  on  to  <lefeat  the  ac- 
tion were  (ll  that  the  iron  delivered  liy 
the  defendants  to  the  plaintiff  was  No.  1 
extra  .\iiiirican  iron,  and  was  of  the  kinil 
ami  (]iiality  re(|uired  liv  the  contract  ;  and 
C-M  that  tiie  title  liavinj;  passe<l  to  tlie 
plaintiff  when  the  iron  was  shipped  to 
him  at  Kliznbethport.  he  could  not  after- 
wards rescind  the  contract  !ind  sue  for 
the  tirice  of  the  iron  and  the  freight  uhich 
he  had  palil.  but  must  sue  for  a  breach  of 
the  warranty. 

It  was  conceded  upon    the   trial    that    if 


the  plaintiff  was  entitled  to  rerover  at  nil, 
his  recovery  should  be  for  *2-.',31.">.-l<).  The 
defendants  pleaded  a  counter-claim  forf.">.- 
•Tl,  wliiih  was  admitted  liy  the  plaiiillff. 
The  jury  returner]  a  verdict  for  the  plain- 
tiff for  *ir,..-d:i.ll,  for  which  sum  and  eostH 
tlie  court  rendered  a  judK>i>ent  <i|;ninHt 
the  defendants.  This  writ  of  error 
liroufjlit  that  judgment  under  review. 

W.  TV  Lyiiile  and  Geo.  1'.  .Miller,  for 
plaintiffs  In  error.  Kppa  llunloii,  Jeff, 
('haniller,  unU  J.  G.  Jenkins,  for  dilendnnt 
in  error. 

WOOns,  J.,  after  statiuK  the  facts  an 
above,  delivereil  the  opinion  of   the  court. 

1.  The  first  assignment  of  error  relateH 
to  nine  exceptions  to  the  adir.ission  of  evi- 
dence by  the  court  aKaiiist  the  olijectlon 
of  the  plaintiffs  in  error.  The  complaint 
huviiiK  allei;ed  that  the  contract  betwec-n 
the  parties  was  for  the  delivery  of  the  iron 
al  ^lil waukee,  tlie  plaintiffs  in  error  ob- 
jected to  the  introiluc'ion  of  eviilence  of- 
fered by  the  defendant  in  error  wliiidi  tend- 
ed to  show  a  contract  for  the  rlelivery  of 
the  iron  ut  ('opla.\  or  Klizabelhport,  be- 
cause the  iiroof  offered  did  Mot  support 
the  avei'iuents  of  the  complaint,  and  Hie 
court  liavin;;  overruled  their  olijeclionH 
and  admitted  the  evidence,  they  now  con- 
tend that  the  judgment  should  for  that 
reason  be  reversed.  Iiut  it  is  clear  that, 
under  section  ".'lii;'.!  of  the  Kevised  SlatuteH 
of  Wisconsin,  which  constitutes  a  rule  for 
tlie  >;uidance  of  the  fedeial  courts  in  that 
state,  this  assi);iinieiit  of  error  is  not  well 
taken.  The  section  mentioned  proviilps: 
■■  .No  variance  between  tlie  alle^jations  In 
pleadin;;  and  the  proof  shall  be  deeincc) 
matei'ial  unless  it  shall  actually  mislead 
the  adverse  parly  to  his  prejudice  in  main- 
taining; his  action  or  defense  on  its  iiierltH. 
Whenever  it  shall  be  aliened  that  a  party 
has  been  so  misled,  '.he  fact  shall  be 
proved  to  the  satisfaction  of  the  court  In 
what  respect  he  has  lieeii  misled,  and 
thereupon  the  court  may  order  the  plenil- 
iuK  to  be  amendfd  niioii  such  lernis  ait 
may  lie  just. "  The  answer  <if  the  plain- 
tiff.s  in  error  denied  that  the  contract  pro- 
vitled  for  the  delivery  of  the  iron  In  .Mil- 
waukee, anil  averre<l  that  the  iron  was  to 
lie  delivered  at  I'oplay.  We  do  not  think 
that  evidence  offered  by  the  defendant  In 
error,  which  teiKled  to  establish  the  aver- 
ments of  the  answer  rather  ihaii  of  the 
comiilaint.  was  such  a  variance  ns  could 
mislead  the  plaintiffs  in  error  to  their  prej- 
udice in  maintainini;  their  defense  upon 
the  merits;  bill,  if  they  lia>l  been  really 
misled,  tliey  should  have  proved  the  fact 
to  the  satisfai-tion  of  the  court  upon  the 
trial.  Iliivins  iie;:l"cted  to  do  this,  they 
cannot  now  complain.  It  is  char  that, 
under  the  statute  of  Wisconsin,  the  plaln- 
tilfs  in  error  had  no  just  ground  of  e.xre|»- 
tlon  to  the  admission  ijf  the  evidence  ob- 
jected to.  Homier  v.  Home  Ins.  Co.,  13 
Wis.  fiTT;  Leopold  v.  Van  Kirk.  •.".>  Wis. 
."i:t;  (iiffert  v.  West.  :'.:!  Wis.  tilT.  These 
eases  show  that  the  dIsirepMnry  I  etween 
the  pliiidiim  and  the  proof  wa<  a  vari- 
ance within  the  meaaiiii:  of  the  stnliite  of 
Wiscou-iii.  an<l  that  the  s-ction  cited  l» 
applicable  to  the  (|Uesllon  in  hand. 


6-18 


POPE  V.  ALLIS. 


2.  The  next  contention  of  the  plaintiffs 
in  i>rror  is  that  evidence  was  improperly 
admitted  ti.v  Mie  circuit  court  to  show 
tlint  tile  iron  landed  at  Milwaul<ee  was 
not  of  tlie  quality  rc(iuir?d  l)y  the  con- 
tract; the  de/eodant  in  error  not  liaving 
shown,  or  offered  to  show,  as  the  plain- 
tiffs in  error  insisted,  that  it  was  the 
same  ir(jii  which  the  defendant  in  error 
liad  purchased,  and  wliich  had  Ijeen 
Hhii)ped  at  Klizahetliport.  And  on  the 
eronnd  tliat  tlie  identity  of  the  iron  was 
not  shown,  tlie  plaintiffs  in  error  insist 
that  the  court  erred  in  rel'usinj;;  to  charge 
the  jury,  as  requtsted  l)y  them,  to  return  a 
verdict  in  theirfavor.  Wethink  theassisn- 
nient  of  error  is  not  supported  by  the  rec- 
ord. The  defendant  in  errordid  introduce 
evidence,  and,  as  it  seems  to  us,  persuasive 
evidence,  to  show  tliat  the  iron  shipped 
for  the  defendant  in  error  at  Elizaheth- 
port  was  the  iron  landed  and  delivered 
to  him  at  Milwaukee.  The  testimony  in- 
troduced tended  to  prove  that  one  Haz- 
ard, on  whose  dock,  at  Klizabethport,  New 
Jersey,  iron  belonging;  to  the  plaintiffs  in 
error  was  stacked,  shipjied  lietween  April 
■2Sth  and  May  12th,  at  Klizabethport,  on 
five  canal-tioats,  wliose  names  are  jiiven, 
500  tons  of  American  iron,  consiKiied  to 
Thomas  J.  Pope  &  Brother,  care  National 
Exchange  Dank.  Milwaukee,  Wisconsin, 
and  to  be  transported  to  Milwaukee  by 
the  river,  canal,  and  lakes;  that  about 
the  same  time  there  was  shipped  to  the 
same  consignees,  and  to  tlie  care  of  the 
same  bank,  the  aoo  tons  of  SScotch  iron 
which  had  been  sold  liy  the  jjlaintiffs  in 
error  to  the  defen<lant  in  error. 

It  was  further  shown  that,  on  June  9th 
and  l.")th  following,  ^00  tons  ofiron,.'JOO 
being  American  an(l  oOO  Scotch,  weretrans- 
ferred  from  the  dock  at  Buffalo  to  two 
schooners,  and  the  bills  of  lading  given  by 
the  schooners  stated  that  the  ."JOO  tons  of 
American  iron  were  the  cargo  of  cannl- 
boats  of  the  same  name  as  those  on  which 
the  iron  had  been  s!)i|)i)ed  at  Elizubeth- 
port,  and  it  apiieared  that  both  the  Amer- 
ican and  Scotch  iron  transferred  to  tiie 
schooners  was  consigned  to  Thomas  J. 
Pope  &  Brother,  care  National  Exchange 
Bank,  Milwaukee,  Wisconsin.  It  was  fur- 
ther shown  that,  about  .luly  1.5tli,  the 
two  schooners  al)ove mentioned  landed  at 
Milwaukee  500  tons  American  iron  and  300 
tons  of  Scotch  iron  for  the  consignees 
mentioned  in  the  bills  of  lading,  and  tlie 
iron  was  delivered  to  the  defendant  in 
error,  and  it  was  conceded  that  the  :!00 
tons  of  Scotch  iron  was  the  same  which 
had  been  sold  by  the  plaintiffs  in  error  to 
the  defendant  in  error  and  shipped  to  said 
consignees  for  liini. 

In  addition  to  this  evidence,  the  defend- 
ant in  error  introduced  the  deposition  of 
James  E.  Pope,  one  of  the  plaintiffs  in 
error,  in  which  he  testified  as  follows: 
"There  is  a  suit  pending  between  my  firm, 
as  plaintiff,  and  the  Coplaj'  Iron  Com- 
pany, as  defendant,  relating  to  the  Amer- 
ican iron  shipped  to  E.  P.  Allis  &  Co."  As 
an  exhibit  to  this  deposition  there  was  a 
copy  of  the  complaint  in  the  suit,  sworn 
to  by  James  E.  Pojie,  from  which  it  ap- 
peared that  the  action  was  brought  to  re- 
cover of   the   Coplay  Iron   Corapan.v  dam- 


ages for  tHe  breach  of  a  contract  by  which 
that  company  warranted  that  a  cert.iiii 
r)00  tons  of  iron,  sold  by  it  to  the  plaintiff 
in  said  suit  as  .No.  1  extra  iron,  was  of 
that  (|uality;  and  it  clearly  ajipeared, 
from  the  complaint  referred  to,  that  one 
of  the  facts  on  which  the  cause  of  action 
was  based,  was  that  the  500  tons  of  iron 
sold  and  shipped  by  the  plaintiffs  in  error 
to  the  care  of  the  National  Exchange 
Bank,  for  tlie  defendant  in  error,  as  No.  1 
extra  American  iron,  was  the  identical 
iron  delivered  for  him  to  tlie  bank  at  Mil- 
waukee, and  which  he  had  purchased  and 
paid  for.  We  therefore  repeat  that  there 
was  persuasive  evidence  offered  to  show 
that  the  iron  ship|>ed  at  Elizaliethport, 
for  the  defendant  in  error  at  Milwaukee, 
was  the  identical  iron  landed  at  Milwau- 
kee and  received  by  him.  The  assign- 
ments of  error,  based  on  the  contention 
that  there  was  no  such  evidence,  must 
therefore  fall. 

3.  The  bill  of  exceptions  shows  that  the 
complaint  above  mentioned  in  the  suit  of 
the  plaintiffs  in  error  against  the  Coplay 
Iron  Coniiiany  was  sworn  to  by  James 
E.Pope;  that  it  contained  an  averment 
on  information  and  belief  touching  the 
(jualily  of  tlie  iron  in  controversy  in  this 
suit;  and  that  the  plaintiffs  in  error  asked 
the  court  on  the  trial  of  this  case  to  charge 
the  jury  that  such  complaint  was  n^.t  evi- 
dence of  aii.v  facts  therein  stated  on  infor- 
mation and  belief.  The  court  refused  the 
charge,  but  instructed  the  jury  that,  in  de- 
termining what  weight  a-<  an  admission 
the  complaint  should  have,  they  might 
consider  the  fact  that  the  allegafion  in 
relation  to  the  quality  of  the  iron  in  ()iios- 
tion  was  made  on  information  and  belief. 
The  plaintiffs  in  error,  having  excepted  at 
the  trial,  now  assign  as  error  the  refusal 
of  the  court  to  give  the  charge  request- 
ed. We  think  the  court  did  not  err  in  its 
refusal.  When  a  bill  or  answer  in  equity 
or  a  iJleading  in  an  action  at  la  wis  sworn 
to  by  the  [larty,  it  is  competent  evidence 
againsr  liiin  in  another  suit  as  a  solemn 
admission  by  him  of  the  truth  of  the  facts 
stated.  Studdy  v.  Sanders.  2  Howl,  &  R. 
347;  De  Wheljidale  vMilburn,  5  Price,  4S5; 
Central  Bridge  Corp.  v.  Lowell,  15  Gray, 
lOG,  Bliss  V.  Nich'ds.  12  Allen,  44:i ;  P^lliott 
V.  Hayden,  104  Mass.  INO;  Cook  v.  Barr,  44 
N.  Y.  156;  Tayl.  Bv.  (Tth  Ed.)  S  175:!; 
Greenl.  Ev.  §§  i"»2,  5."5.  When  the  aver- 
ment is  niade  on  information  and  lielief,  it 
is  nevertheless  aimissible  as  evidence, 
though  not  conclusive.  Eord  EUenbor- 
ougli  in  Doe  V  Steel, 3  Camp.  115.  The  au- 
thority cited  sust.-iins  the  proposition 
that  thefact  that  lliea verment  ismade  on 
information  and  belief  merely  detraet.s 
from  the  weight  of  the  testimony.  It  does 
not  render  it  inadmissible.  The  charge 
given  by  the  circuit  court  on  this  point, 
therefore,  deprived  the  plaintiffs  in  error 
of  no  advantage  to  which  they  were  en- 
titled. 

4.  The  assign aient  of  error  mainly  relied 
on  by  the  plaintiffs  in  error  is  that  the 
court  refused    to   instruct   the  jury  to   re- 

'turn  a  verdict  for  the  defendants.  The 
I  legal  proposition  upon  which  their  coun- 
sel based  this  re(iuest  was  that  the  piir- 
I  chaser  of  iiersonal  iiroperty,  upon    breach 


4 


POPE  V.  ALLIS. 


610 


of  warruntv  of  quality,  ciinnot,  in  tlio  nh- 
Henue  of  fi-auil,  iCHciiid  tlic  contract  of  piir- 
clinHc  and  sale,  ami  sue  for  tlic  recovery  of 
til"  price.  .\nil  tl;ey  contended  that,  aH 
tlie  iron  waw  delivered  to  defendant  in 
errtir  eitlior  nt  ("oplay  r)r  lCii/.al>etlip()rt, 
and  (lie  Hale  wa.s  completed  tliereliy.  the 
only  remedy  i)f  the  defeudaiil  in  error  whm 
by  a  suit  upon  the  warranty .  It  did  not 
appear  that  at  the  date  of  the  contract 
the  iron  had  iM'cn  tnaniifactnred.  and  il 
was  sliown  l)y  tlie  record  th.-it  no  partic- 
ular iron  wan  He^reKated  .Mnd  appropri- 
ated to  the  contract  liy  the  plainlil'lH  in 
error  unlil  a  Khort  time  tiefore  itH  MJiip- 
ineat.  in  till'  latter  part  of  April  and  tlie 
eiirlj  part  of  May.  Tliedefeiidant  in  error 
had  no  oppoitiinity  to  inspect  it  until  it 
arrived  in  .Mil wauUee.  and  conHeci'iently 
never  accepted  the  particular  iron  appro- 
priated to  till  the  contract.  It  was  eslati- 
iislicd  liy  the  verdict  of  the  jury  thai  the 
iron  shipped  was  not  of  the  i|uality  re- 
quired li.v  the  coiitra<-t.  I'lKler  these  cir- 
cumstances the  conleiition  ol  the  |ilain- 
tiffs  in  error  is  that  tliedefeiidant  in  error, 
althoiiKli  llie  iron  ship cd  to  him  was  not 
what  he  liuu^ht,  and  could  not  he  used  in 
his  liusiness.  was  hound  to  keep  it.  and 
could  onl.v  recover  the  difference  in  value 
hetween  the  iron  for  vvliicli  In;  contracted 
and  the  iron  wliicli  was  delivered  to  liim. 
We  do  not  tliiiiU  tli;it  sui-h  is  tlie  law. 
When  thcKUl>ji'''t-ni'i"'''"  of  a  sale  is  not  In 
existence,  <ir  not  ascertained  at  the  time 
of  the  contract,  an  unciertakiii};'  that  it 
Hliall,  when  existiii^i  or  ascertained,  pos- 
Kess  certain  i|ualities.  is  not  a  mere  war- 
ranty, liut  a  condition,  the  performance  of 
which  is  jirecedent  to  any  olilination  upon 
file  vendee  under  tlie  contract;  because 
the  existenco  of  those  (|iialilies  hein>r  [lart 
of  the  description  of  llie  tliiiK^  sold  be- 
comes essent  i.il  toits  identity, and  the  ven- 
dee cannot  lie  obliired  to  receive  and  pay 
fora  thin;; diffcreat  from  that  forwhich  lie 
contracted.  Chanter  v.  Hopkins.  4  .Mees. 
&  \V.  JII4;  r.arr  v.  (iibson,  :!  .Mees.  &  W. 
:!!)0;  (iomperlz  v.  liartlett.  L'  Kl.  &  151.  Sl!»; 
OkcU  V.  Smith,  1  Stark.  .\.  P.  Ih7;  notes 
to  Cutter  V.Powell.'.'  Smith,  Lead.  ("as. 
(7tli  Amer.  i:d.)  :!7 ;  Woodle  v.  Whitney, 
:':?  Wis.  :V>;  Itoothby  v.  Scales,  'J7  Wis.  (1L'<! ; 
Kairlield  v.  .Madison  Maniif'a:  Co.,  :>s  Wis. 
:!•!().  See,  also,  Nichol  v.  (;o(lts,  10  Excli. 
1!M.  So.  in  a  recent  case  deciiled  by  tlii.-' 
court,  it  was  said  by  .Mr.  .1  ustice  (iray: 
".'\  Htalement"  in  a  mercantile  coiitract 
"descriptive  of  the  suliject-matter  or  of 
Home  material  incident,  sucli  as  the  time 
or  place  of  Hhipment,  is  ordinarily  to  be 
ret;arded  as  a  warranty  in  the  sense  in 
which  that  term  iH  used  in  Insurance  and 
maritime  l.aw;  that  ia  tOHuy,  a  condition 


precedent  upon  thefnihire  or  non-perform- 
ance of  which  the  party  aKurieved  may 
repudiate  the  wiml-  contract. "  .NorrlnR- 
ton  V.  Wriuht,  11.'.  I'.  S.  IsH,  C,  Sup.Ct.  Itep. 
^2.  See,  also,  Filley  v.  Pope,  ll.",  V.  S.  L'i:j. 
li  Snp.  C».  Ilep.  111.  Anil  HO.  when  a  con- 
tract fill'  the  saleof  ;;oodH  Ih  made  by  HBin- 
ple,  it  lunountH  to  an  undertakInK  on  the 
part  of  the  Heller  with  the  buyer  that  all 
the  KoodK  are  similar,  both  in  nature  and 
i|uality,  to  those  e.xhiliited.  and  If  they 
do  not  correspond  the  buyer  may  refUHu 
to  receive  them;  or,  if  received,  he  iiiiiy  re- 
turn them  in  a  reaHonable  time  allowed 
for  examination,  and  tliiis  rescind  the 
contract.  Lorvnier  v.  Smith.  1  I'.arn.  & 
C.  1  ;   Ma«ce  v.  I5illlnirHley,  :!  .Ma.  r,7!l. 

'the  authoriticH  cited  Hiistain  this  prop- 
osition: that  when  u  vendor  sells  i;ooiIh  of 
a  Hpccihed  quality,  liut  not  In  existence  or 
aKcertained,  and  uiidertakes  to  ship  them 
to  a  distant  buy«r.  wln'ii  made  or  ascer- 
taineil.  and  deliviTH  them  to  the  carrier 
for  the  purchaser,  the  latter  Ih  not  bonnd 
to  accept  them  withoutexamlnation.  'I'lie 
mere  (lelivrry  of  tlie;;ooils  by  the  vendor 
to  the  carrier  docs  not  iieceHsarlly  bind 
the  vendee  to  accept  tliem.  On  their  ar- 
rival he  has  the  riu'it  to  inspect  them  to 
nscertain  wtietlicr  they  conform  to  tlie 
contract,  and  the  riuht  to  In-^pect  implieH 
the  rijjht  to  reject  them  if  they  are  not  of 
tlie  qualit.v  reijuired  by  the  contract.  'I'lie 
nillnKs  o(  the  circuit  court  were  in  accord 
aiice  with  these  views. 

We  have  been  referred  b.v  the  plaintiffs 
in  error  to  thecases  of  Thornton  v.  Wynn, 
lLM\'lieat.  1N4.  and  T-yon  v  r.eftram.  LM 
How.  l-l!l,  to  sustain  the  proposition  that 
the  defendant  in  error  in  tliis  case  could 
not  resciiiil  the  contract  and  sue  to  re- 
cover back  the  price  of  the  iron,  liut  the 
cases  are  not  in  point.  In  the  first,  there 
was  an  absolute  sale  with  warranty  and 
delivery  to  the  vendee  of  a  Hpicillc  chat- 
tel, namely,  a  race-horse;  in  the  second, 
tlie  sale  was  of  a  specilied  anil  desiKiiated 
lot  of  Hour  which  the  vemlee  had  accept- 
ed, and  part  of  which  he  had  iiHed,  with 
ample  means  to  nscertain  whether  or  not 
it  conformed  to  the  contract. 

The  cases  we  have  cited  are  conclusive 
against  the  contention  of  the  plaintiffs  in 
error.  Tlie  jury  has  found  tliat  the  iron 
was  not  of  the  quality  which  the  contract 
required,  and  on  that  irround  the  defend- 
ant in  error,  at  the  lirst  opportunity,  n-- 
jected  it,  as  he  had  a  riRlit  to  do.  IIIh 
suit  to  rei'over  the  price  was,  therefore, 
well  brou',ilit. 

Other  errors  are  assigned,  but.  In  our 
opinion,  they  present  no  ^rouiid  for  the 
reversal  of  the  jud;iment.  and  do  not  rc- 
(|Uire  discussion.     Judgment  alllrmed. 


KANDALL  c    NEWSON. 


rni 


RANDALL  v.  NEWSON.  l 

(3  Q.  B.  Div.  102.) 
Court  of  Appeal.    Jan.  22,  1877. 

St.Ttenient  of  rluim.  that  plnintiff 
l)()ijulit  of  defend  a  111.  ii  I'lirriajre  miiiiufac- 
turcr,  n  phaeton  for  two  lii;v.><eH,  the  pole 
made  and  wupplicd  for  whic-li  \\nn  ho  care- 
lessly aiKl  iiegiiKently  made,  ai.d  of  hucIi 
had  anil  linpropir  wood,  that  while  the 
plnintiff  was  drivin;;  the  phaeton  the  polo 
broke  and  eaused  'he  horses  to  run  away, 
and  the  horses  were  daniafjcd. 

Defence,  denying  that  the  pole  was  care- 
lessly or  iiestlinently  made,  or  of  had  or 
improper  w.ood  ;  and  not  admitting;  that 
the  pole  hroke  hy  reason  of  any  ilefect  in 
the  wood,  or  that  the  di'fi'iidaiil  sold  the 
phaeton  under  such  ciieunistanceB  as  to 
render  him  lia hie  for  tli(>  eonse(iuence.s  of 
a  latent  defect.     Issue  joined. 

At  the  trial  before  Archibald.  . I.,  at  tlie 
Sliddlesex  Hilary  sittiii^s,  IST'l,  it  appeareil 
that  the  plaintiff  bouiiht  of  the  ilpfeiidaiit, 
who  was  a  cairiaf;e  builder,  a  iihacton.  in 
Aimust,  1^74;  it  was  only  fitted  with  shafts 
for  one  horse,  and  the  plaintiff  ;;ave  or- 
ders to  the  defendant  for  a  pole  and  splin- 
ter-bar to  be  made  and  fitted  to  it. 

The  pliaeton  was  sent  home  with  the 
pole  and  splinter-bar.  and  while  the  plain- 
tiff was  driving  it  with  two  horses  In  Oc- 
tober, Is".),  the  horses  swerved  and  the 
pole  broke  short  off  at  the  carriage.  The 
horses  in  coiisei)ueiice  became  restive  and 
were  much  danumed. 

There  was  much  contradictory  evidence 
ns  to  the  causeof  the  breaUinj^  of  the  pcde, 
the  plaintiff's  witnesses  savin;;  it  was  of 
bad  wood,  while  the  defendant's  stated 
that  the  wood  was  jierfectly  Kood.  The 
value  of  a  new  pole  was  agreed  at  f:!.  and 
the  plaintiff  nave  evidence  that  his  horses 
were  (laiDa;;e(l  to  bet  ween  SKJO  and  £14li. 
The  learned  iudine  expressed  it  as  his  opin- 
ion, that  it  tlure  were  no  ne;;li;;ence  on 
thejiartof  tlie  (<efeiidaiit  in  inakiuK  the 
pole,  or  in  the  selection  of  the  materials, 
the  plaintiff  could  not  recover  more  than 
the  £:};  and  he  left  to  tlie  jury  two  ques- 
tions: 1.  Was  the  i)ole  reasonably  lit  and 
proper  for  the  carria^ie'.*  '2.  Was  the  de- 
fendiiiit  ;;uilty  of  any  neglisence'.'  And  he 
asked  the  jury  also  to  assess  the  conse- 
ciucntial  dama;j:e8,  in  case  they  should  be- 
come material.  The  learned  jud^e  was 
obliH:Pil  to  leave  the  court,  to  attend  a 
meetiiiK  I'f  the  judges,  before  the  jury  had 
returned  their  verdict. 

The  jury  answered  both  questions  in 
the  negative,  and  as  to  the  damages,  said 
they  understood  from  tlie  juilj;e  that  i:! 
was  all  they  could  HikI. 

On  these  findings,  the  verdict  and  judg- 
ment were  entered  for  the  plaintiff  for  €•'!. 
with  leave  to  move  to  enter  judgment  for 
the  defendant. 

The  defendant  Rave  notice  of  motion  ac- 
cordingly; and  the  plnintiff  obtained  an 
onler  for  a  new  trial  on  the  >;i"ound  of 
misdirection  by  the  learned  judge  as  to 
the  measure  of  damages. 

1S7G.  Feb.  11).  Sills,  (Cave,  Q.  C.  with 
him.)  for  defendant. 

•  iates,  Q.  C.,  and  Edward  Pollock,  for 
plaintiff. 


Tril-:  (OirUT  (BKA(KnrnN  and 
Ll'.SH.JJ.i  ordered  judumeiit  to  be  en- 
tered for  the  ilefendaiit.  on  the  urniind 
that  the  answers  of  the  jury  amounted  to 
a  tiiiilinc  of  a  latent  defect"  In  the  w<iod 
of  the  pole,  which  no  care  nor  skill  could 
discover,  and  thai  the  principle  of  the  fle- 
cision  in  Headhead  v.  llailway  Co.'  ex- 
tended to  the  sale  of  an  urtiile  (or  a  spe- 
cilic  purpose. 

The  plaintiff  appealed. 

Nov.  17.  Gates,  t^.  C.  and  It.  V.  Wil- 
liams, (ICdward  Pollock  with  hlin,)  for 
plaintiff. 

Xov.  18.  Cave,  Q.  C,  and  .SIIIm.  for  de- 
fendant. 

The  judgment  of  the  court  (KKF.LY,  C. 
n..  .MliLLISH.  U.  J.,  and  HIIKTT  and 
AMPHLETT,  J  J.  A.)  was  delivered  by 

ni!KTT,.I.  A.  This  case  was  tried  upon 
the  footini;  that  it  was  an  aclion 
brought  against  the  defendant,  a  coach- 
buililer,  to  recover  damageH  in  respect  of 
injuries  to  the  plaintiff's  liorses  and  car- 
riage, b.v  reason  of  the  defendant  having 
supplied  to  the  jilaintiff  a  defec 1 1 vi- car- 
riage pole.  The  jury  foiiinl  that  the  pole 
was  not  reasonably  lit  and  proper  for 
the  use  of  the  carriage;  but  that  there 
was  no  negligence  on  the  part  of  the  de- 
fendant (including,  of  course,  his  servants 
or  agents)  in  supplying  the  pole.  The 
price  of  a  new  pole  was  i;i.  The  damage 
done  to  tlie  horses  and  carriage  was 
inurh  more.  Hut  the  only  damages  found 
by  the  jury  were  £'-i.  t'pon  these  lindiiiKS 
th<- court  of  queen's  bench,  applying  to 
this  contract  the  principle  laid  down  iu 
Headhead  v.  Kailway  Co.- gave  judgment 
for  the  defendant.  No  dispute  was  made 
at  the  trial,  or  in  argument,  as  to  the 
nature  of  the  order  given  and  accepted; 
the  r|uestions  argued  were  whether  the  de- 
fendant was  liable  at  all.  ami  wh:it  was 
the  extent  of  damages  to  which  lie  might 
be  subjected,  if  he  was  liable  at  all.  Now 
as  to  these  questions,  it  is  to  be  taken,  al- 
though nothing  specitic  seems  to  have 
been  said,  that  the  order  given  and  accept- 
ed was  not  merely  for  a  pole  in  general, 
but  tor  the  siipiily  of  a  pole  for  the  plaiu- 
tiff's  carriage;  and  tiiat  the  contract 
therefore  was  lor  the  purchase  and  sale, 
or  supply,  of  an  article  for  a  specilic  pur- 
pose. In  other  words,  the  subject-matter 
of  the  contract  was  not  merely  a  pole,  but 
a  pole  for  the  purchaser's  carriage;  or,  to 
state  the  proposition  in  an  .quivnlent 
form,  the  thing,  which  would,  if  Hie  con- 
tract were  formally  drawn  ui>.  beilesi-rlbeil 
in  it  as  tlie  subject-matter  of  it.  would 
not  be  mer"l>  a  pcde  generally,  but  a  pide 
to  be  purdiaseil  for  a  specillc  purpose, 
namely  to  lie  used  in  the  plaintift's  car- 
riage." The  question  is,  what,  in  such  a 
contract,  is  the  implied  undertaking  of 
the  seller  as  to  the  ell'ciency  of  the  pole? 
Is  it  an  absolute  warranty  that  the  pide 
shall  be  reasonably  lit  lor  the  purpose,  or 
is  it  onlv  partially  to  that  effect,  limited 
I  to  defects  which  miglit  be  disctivered  by 
care  and  skill? 

I      >  L.  R.  4  Q.  B.  :t79. 

1       'L.  U.  2  y    B.  412;  in  error  L.  R  4  VJ.  B.  378. 


€52 


RANDALL  v.  XEWSON. 


In  order  to  fificido  this  question  it  seems 
advisable  to  ascertain  the  primary  or  rov- 
erninji;  prineiple  on  wliiili  the  earlier  cases 
were  decided,  and  to  see  wlietlier  the  jirin- 
ci|)l9  on  which  they  were  decided  ouRlit  to 
be  niodilied  by  tlie  decision  in  Ueadliead 
V.  Railway  t'o.  The  earliest  ease  seems  to 
be  Parkinson  v.  Lee.''  in  ISUl'.  It  is  suffi- 
cient to  Huy  of  it  that,  either  it  does  not 
determine  the  extent  of  a  seller's  liability 
on  the  contract,  or  it  has  lieen  overruled. 
Neither  can  the  case  of  Fislier  v.  Samu- 
da,t  in  ISOS,  be  said  to  decide  anythiny;. 
The  first  cases  of  im|)ortance  are  iJardiiier 
V.  Gray,'''  and  Laing  v.  Fidgeon."  in  Isl.^. 
In  Gai'diner  v.  Gray  the  contract  was  for 
the  i)nrcliase  and  sale  of  "woste  sDU.'" 
The  silk  was  inip<irted,  and  the  Ijulk  had 
not  been  .seen  either  by  the  ilefendant, 
the  seller,  or  the  plaint^iff,  the  buyer. 
Lord  ICIlenborough,  said  :  "I  am  of  opin- 
ion that,  under  such  circumstances"  (i.  e. 
Ji  sale  of  silk  as  waste  siik )  "  the  [lurchassr 
has  a  right  to  expect  a  saleable  article, 
answering  the  description  in  the  contract. 
AVitbout  any  particular  warranty,  this  is 
an  implied  cei'ui  in  every  such  contract.*' 
The  contract  was  for  the  purchase  and 
sale  of  a  commodity  described  generally, 
not  described  to  be  ordered  or  supplied  for 
a  particular  purpose.  The  description  of 
it  was  that  it  was  waste  silk.  From  that 
it  is  implied  that  it  is,  or  in  other  words 
it  is  assumed  that  it  might  lie,  specitically 
described  as  saleable  waste  silk.  The  de- 
cision, therefore,  is  that  the  commodity 
offered  and  delivered  must  answer  the  de- 
scription of  it  and  be  saleal)le  waste  silk. 
The  principle  is  that  thecommodity  offered 
must  answer  the  description  of  it  in  the 
contract.  Laing  v.  Fidgeon  is  to  thesame 
effect.  In  (iray  v.  Cox,''  in  ISi."),  the  case 
was  dtciderl  on  a  variance;  but  Abliott, 
C.  J.,  stated  that  he  was  of  opinion.  "  that 
if  a  person  sold  a  commodity  for  a  partic- 
ular purpose,  he  must  l)e  understood  to 
wariant  it  reasonably  fit  and  proper  for 
such  purpose."  The  commodity  offered 
was  copper  for  sheathing  the  ship  Coven- 
try. It  was  proved  that  no  detect  could 
l)e  discovered  by  inspection  of  the  article, 
and  it  was  admitted  that  the  defendants 
were  ignorant  of  the  defective  i|uality  of 
the  copper.  It  is  olivious  that  Lord  Ten- 
terden  did  not  consider  the  seller  relieved 
by  reason  of  the  defect  being  latent. 

This  ruling  of  Lord  Tentenlen  was 
ado|)ted  in  thedecision  of  Jones  v.  Bright, s 
in  ISSt.  The  contract  was  for  copper 
sheathing  for  a  ship.  The  question  pro- 
posed liy  Ludlow,  Serjt.,  ri  argument 
was,  "wliether  the  law  will,  according  to 
the  dictum  of  Lord  Tenterden,  in  Gray  v. 
Cox"  lay  upon  the  seller  or  manufacturer 
an  obligation  to  warrant  in  all  cases  that 
the  article  which  he  sells  shall  be  reason- 
ably fit  and  proper  fur  the  purpose  for 
■which  it   is  inttnded.and   render  him  re- 


»2  East,  314. 

n  Camp.  190. 

'4  Uamp.  144. 

« B  Taunt.  108. 

'4  B.  &  C.  108,  115. 

T)  Bing.  .533,  540. 

'4B.  &  C,  at  p.  115. 


sponsil)le  for  all  the  consequence.s  which 
may  result,  if  it  shall  he  found  not  to  an- 
swer the  purpose  for  which  it  was  de- 
nigned,  and  that,  on  account  of  some  la- 
tent defect  of  which  he  %vas  ignorant,  and 
which  shall  not  be  proved  to  have  arisen 
from  any  want  of  skill  on  his  jiart,  or  the 
use  of  improper  materials,  or  any  accident 
against  which  Ir.iman  prudence  might 
have  been  capable  of  guarding  him." 
Here,  therefore,  the  whole  proiiosition, 
with  and  without  limitations,  was  plainly 
laid  before  the  judges  for  their  coiisidera- 
tion. 

The  answer  given  by  Best,  C.  J.,  was: 
"I  wish  to  put  the  case  on  a  broad  princi- 
ple. If  a  man  sells  an  article  he  thereby 
warrants  that  it  is  merchantable.  — that 
it  is  ht  for  some  purpose.  If  he  sells  it  for 
that  particular  i)Ui|)ose,  he  thereby  war- 
rants it  fit  for  that  purpose. 
Whether  or  not  an  article  has  been  sold 
for  a  particular  purpose  is,  indeeil,  a  ques- 
tion of  fact;  but  if  sold  for  such  purpose, 
the  sale  is  an  undertaking  that  it  is  tit. 
.  .  .  The  law  then  resolves  itself  into 
this, — that  if  a  man  sells  generally,  he  un- 
dertakes that  the  article  sold  is  fit  for 
some  |)'irpose;  if  he  sells  it  for  a  particu- 
lar purpose,  he  undertakes  tiiat  it  shall  be 
fit  for  that  particular  purpose."  Nothing 
can  be  more  clear  than  that  the  rule  is  ad- 
visedly enunciated  as  a  warranty  without 
limitatiiui.  Brown  v  Edgington'o  is  to 
the  same  effect. 

In  Wieler  v.  Schilizzi.n  the  contract 
was  for  "Calcutta  linseed."  Jervis,  C.  J., 
told  the  jury  that  the  (luestion  for  them 
to  consider  was,  "whether  there  was 
such  an  admixture  of  foreigii  sul)stances 
in  it  as  to  alter  the  distinctive  character 
of  the  article,  and  prevent  it  from  answer- 
ing the  descri|)tion  of  it  in  the  contract. " 
Cresswell,  J.,  said,  "They  wei'e  to  say 
whether  the  article  delivered  ieasonal)ly 
answered  the  description  of  Calcutta  lin- 
seed." Crowder,  .L,  said,  "The  jury  in 
effect  found  tliat  the  article  delivered  did 
not  reasonably  answer  the  description  in 
the  contract."  Willes,  .J.,  said,  "The  pur- 
chaser had  a  right  to  expect,  not  a  perfect 
article,  but  an  article  which  would  tie 
salealilo  in  the  market  as  Calcutta  linseed. 
If  he  got  an  article  so  adulterated  as  not 
reasonably  to  answer  that  description, 
hedid  not  get  what  he  liargained  for."  In 
this  case  it  is  to  lie  observed  that  all  the 
judges  adopted  the  form  of  stating  the 
principle  which  was  used  by  Lord  Ellen- 
borough  in  (iardiuer  v.  (Jray.i-  In  Nlchol 
V.  Godtsis  the  contract  was  for  "foreign 
refined  rape  oil,  warranted  only  equal  to 
samples."  The  oil  offered  was  equal  to 
samples,  but  both  samples  and  oil  were 
adulterated.  Parke,  I!.,  told  the  jury 
"that  the  statement  in  the  sold-ncte  as 
to  the  samples  related  to  the  quality 
onl.v  of  the  article,  and  that  acL'ording 
to  the  contract  the  <lefendant  'vas  en- 
titled to  have  rape  oil  delivered  to 
him."  Piatt,  B.,  in  banc,  said  :  "1  under- 
stand that  the  oil    to  be  deliveri^d  was   to 


"'2  M,  &  G.  370. 

"  17  U.  B.  010,  633;  3.5  L.  J.  (C.  P.;  89. 

'=4  Camp.  144. 

"10  Ex.  Ifll;  33  L.  J.  (Ex.)  314. 


RANDALL  c.  M:\VSUX.  6j;} 

bt'equnl  to  the  HtiinpleR  in  (niiilily.  I'.iit  '  piirciiiiHe  niiil  nn]o  must  nnswer  the  ile- 
tlie  ilefcn.lant  (li<l  not  refiiHP  to  ncccpt  tlii"  Kc-ilptioii  of  it  wliiili  Ih  <oii  t;iliifi|  In  wonlH 
oil  t('iMl<  ri'il  to  liiiii  oil  tlie  nioiinil  that  it  In  tin-  rontruct,  or  which  would  In-  ho  con- 
(liil  not  i<|iinl  the  Hainplus,  iMit  on  accouMl  tiiincil  if  tho  contrnct  were  ucc-uratcly 
of  itH  not  l)(  in;;  forciun  relined  nipc  oil  at  iliawn  out.  Anil  If  that  he  the  RovernlUK 
all.  And  the  learned  judye  told  the  jury  piincipic.  there  Im  no  plnc-e  In  It  for  the 
that  if  they  KhoMid  thinli  that  waH  MO.  the  Hii^Kested  llniitation.  If  the  nrtkle  or 
defendant  wan  not  hound  to  accept  it.  coniinodity  offereil  or  didivered  doew  not 
Tliat  direction  was  perfectly  correct.  If  In  fact  anHwer  the  dcHCi Ipthm  of  It  in  the 
tho  jury  had  found  that  the  article  which  contrnct.  it  doen  i,i>l  ilo  ho  more  or  lexH 
the  plaintitf  tendered  was  known  In  the  i)ecauHe  the  defect  in  it  Ih  patent,  or  la- 
market  under  tlie  name  and  cicMcriptlon  tent,  or  discovcrRhle.  .\nd  accordlncly 
of  foieinn  reHned  rape  oil,  the  plain  tiff  there  Ih  no  HiiirtreHtion  of  any  mucIi  liniita- 
woiild  have  lieen  entitled  to  Hucceeil ;  l)ut  f-ion  in  any  of  thejud^rnentH  In  caniH  re- 
the  (luestion  wa.4  put  to  the  jury,  and  latini;to  conti-acts  of  purchiiHe  and  Hole, 
they  were  of  opinion  that  it  wbh  not  Inlen.-*.  theicfore,  there  Ih  Home  Idiidinjc 
known  as  hucIi."  And  I'arke.  I!..  Haid  '  authority  to  the  contrary,  we  oujjlit  not 
"the  evidence  went  to  hIiow  that  the  oil  now  to  introiluce  hy  Implication  a  liiultu- 
offered  <lid  not  answer  the  description  of  tii>n  into  contractn'of  purchanp  and  nale 
the  arti<'le  Hold."  which  linH  never  been  Introiliiced  before. 

This  form  of  Htating  the  rule  wan  dis- ,  ItisBaidthat  the  case  of  Hcadhead  v. 
tinctly  adopteil  in  Josliiij;  v.  Kinnsford.' *  Knilwuy  Co.'"  in  error  is  such  a  l)lnding 
IiyEile,  ('..I.,  and  Willi's,.!.  Krle,  C.  .1 .  I  authority.  liiit  in  answer  to  the  cuseH 
told  the  jury"tliat  the  defendant  could  '  cited  of  the  implied  nnilertakin;:  in  con- 
only  perform  his  part  of  tlie  contract  by  tractH  of  purchase  and  nnle.  .Montague 
delivering  that  which  in  commercial  laii-  .Smith.  .!.,  says:  "The  connHid  for  the 
(■uuse  miiilit  properly  be  said  to  come  un-  pl;iinl iff  referred  to  some  of  the  cusch  in 
dertlie  dcnoinination  of  oxalic  acid  ;  and  wliicli  it  had  licen  held  tliat  in  contracts 
that  if  they  should  be  of  opinion  that  the  foi- the  supply  of  kooiIh  for  a  particular 
article  delivered  i)y  the  defendant  as  ox-  purpose,  there  is  an  implied  wananty  that 
alio  acid  diil  not  properly  fullil  that  de-  t  he  noods  Hiipplied  shall  he  reasonaldy  lit 
scriptioii  tliey  should  liiid  for  theplaiiitiff.  "    forthatpurpo.se.     .     .     .     Hut    the   n;;ree- 

I  have  cited  these  cases,  and  the  priuci-  men t  to  sell  and  supply  for  a  price  which 
pies  laid  down  in  thcin,  in  order  clearly  to  maybe  assiiincd  to  represent  their  value 
ascertain  what  is  the  iirimar.Nor  ultimate  is  a  contract  of  a  different  nature  from  n 
rule  from  which  the  rules  which  have  liiH'n  contract  to  carry,  and  has  essentially  dif- 
applied  to  contracts  of  purchase  and  sale  ferent  incidents  attachiim  to  it."  It  is 
of  somewhat  different  kinds  have  been  de-  true  that  the  learned  jiidiie  afterwards 
duced.  Thosedifferent  rules,  as  applied  to  says  :  "  ICven  in  the  cases  of  contractu  to 
such  diffei-ent  contracts,  are  carefully  eiui-  snpidy  f^ijods  it  iiriy  be  a  iiiiestion,  on 
mcratedaiid  recognized  in  .loncs  v. .lust.'-'  which  it  is  not  now  necessary  to  eXprcHg 
111  Home  contracts  the  under  tali  in;;  of  the  an  opinion,  how  fa  rand  to  what  extent  the 
seller  is  said  to  be  only  that  the  article  vendor  would  be  liable  to  the  vcinlee  In  tho 
shall  lie  iiierchaiitable:  in  others,  that  it  case  of  a  latent  ilefect  of  the  kind  existing 
shall  be  reasonably  lit  for  the  purpose  to  in  the  present  case  which  no  skill  or  care 
which  it  is  to  lie  apnlied.  lu  all,  it  seems  could  prevent  or  detect."  Hut  it  seeuis 
to  lis.  it  is  either  assumed  or  expressly  impossible  loj;ically  to  hidd  that  n  case.— 
stated,  that  the  fiiiidameutal  iindertaUiiii:  in  whiih  tlie  court  declined  to  follow  the 
is,  that  the  articleolfered  ordelivered  shall  decisions  on  contracts  of  purchase  anil 
answer  (ho  description  of  it  contained  in  sale,  on  the  Kronnd  that  those  contractB 
the  contract.  That  rule  comprises  all  the  are  of  a  different  nature  and  have  essen- 
iilhers;  they  are  adaptations  of  it  to  par- |  tially  different  incidents  from  the  contract 
ticular  kindsof  contracts  of  purchase  and  to  carry,  which  was  in  discussion  in  that 
sale.  Yon  must,  therefore,  first  determine  I  case,— can  be  fairly  bindiiiK  on  this  court, 
from  the  words  used,  or  thecircnmsfances,  ho  as  1o  oliliKe  it  to  iiilrndiice  a  purlieu- 
what,  in  or  accordiiiK  to  the  contract,  is  lar  limitation  into  a  coiitri.ct  of  purchiiHe 
the  real  mercantile  or  business  descrip- |  and  sale,  because,  in  that  case,  it  was  lii- 
tion  of  the  tiling  which  is  the  sultjcct- '  troduced  into  o  contract  to  carry  passen- 
mntter  of  the  liar^ain  of  purchase  or  sale,  |  jjers. 

or,  in  other  woi-ds,  the  cuntrai  t.  If  that  Thecase  of  Francis  v.  Cockrell''  Is  basj-d 
subject-matter  be  merely  tlie  commercial  npoii  Iteadhead  v.  Kaihvay  Co.  and  is 
arlicie  or  commodity,  the  undertakinii  is.  therefore  of  itself  no  more  a  liiiidli.c  an- 
that  the  thin;;  offered  or  delivered  shall  tliority  on  us  in  t  his  case  llian  theollnr. 
answer  that  ilescription,  t  ha  t  is  to  say.  It  is  true,  however,  that  the  lord  chief 
shall  he  that  article  or  commodity,  salea-  baron.  uoin«  further  than  the  doubt  ex- 
ble  or  merchiintable.  If  the  subject-mat-  pressed  by  Montague  .Sinilh.  .1 ..  docs  rec- 
tor lie  an  article  or  comiiiodity  to  lie  used  otfuiie  the  limitation  as  applicable  to  ron- 
for  a  particular  purp. ISO.  the  tliiiii;  iiffereil  tracts  of  purchase  and  sale."*  Hut  the 
or  delivered  must  answer  that  descrip-  statement  of  the  learned  judce  was  not 
tioii,  that  is  to  sav,  it  must  be  that  arti-  necessary,  and  therefore  Is  not  bliidinit. 
rle  or  commodity,  and  reasonably  tit  for  tliou«h  of  courHe  invitin;;  a  careful  con- 
tlie  particular  purpose.  The  <iiiveiniii;;  siileradon  of  the  older  cases.  After  such 
principle,  therefore,  is  that  the  thin«  consideration,  for  the  reasons  before 
offered  nntl  delivered  under  n  coutract  of  I 


'•  I..  R.  4  0-  W-  3^.  !*S«. 


"13  C.  B.  (N.  S.)  447;  Si  L.  J.  (C.  P.)  t'4.  "  b-  K.  5  Q.  B.  M\.  rm. 

"  L.  R.  3  y.  B.  VJ7.  I      "  b   R.  5  g.  U.  at  page  W3. 


€5i 


RAXDALL  V.  NEWSOX. 


given,  we  are  of  opinion  that  the  under- 
taking of  the  present  (ietendant  was  not 
restricted  by  the  limitations  applied  to 
tlie  contract  of  carriage  in  Readliead  v. 
Railway  Co.,  and  that  so  long  as  the  ver- 
dict in  this  ease  stands  it  inii)oses  a  liabil- 
ity on  the  defendant.  We  are,  therefore, 
of  opinion  that  the  jndgnient  of  the  court 
of  (|ueen's  bench  directing  the  judgment 
to  beentered  for  thedefendant  was  wrong. 
In  theconrt  of  (lueen's  l)ench  across  rule 
had  been  oljtained  on  behaU'  of  the  plain- 
tiff for  a  new  trial,  on  the  ground  of  misdi- 
rection as  to  the  n,easnre  of  damages.  In 
consequeupe  of  the  decision  that  the  de- 
fendant was  not  liable  at  all,  it  became 
useless  to  argue  the  point.  But  Mr.  Gates 
lias  renewed  it  before  us,  and  has  asUed 
for  a  new  trial  on  tlie  ground  of  such  mis- 
direction, desiring  to  have  such  new  trial 
confined  to  the  ijuestion  i>f  damage  only. 
We  think  that  a  (juestion  should  have 
been  left  to  the  jury  similar  to  that  which 
was  left  in  Smith  v.  <lreen.i9  namely, 
whether  the  injury  to  the  horses  was  or 
was  not  a  natural  consequence  of  the  de- 
fect in  the  pole.  There  has  been  a  miscar- 
riage in  this  respect  at  all  events.  We 
are  asked  to  contine  the  new  trial  to  the 
question  of  damages,  but  considering  that 


» 1  C.  P.  D.  92. 


the  real  question  is  not  whether  the  pole 
was  perfect,  but  only  whetlier  it  was  rea- 
sonably fit,  we  cann(jt  thiidi  that  the  find- 
ings of  the  jury  as  to  the  (luestions  left  to 
them  in  order  to  determine  the  liability  of 
the  defendant  are  so  satisfactorj-  as  to 
authorize  us  to  confine  the  question  to  be 
raised  on  a  newtrial  to  thedamages  only. 
We  think  that  the  judgment  of  thecourt  of 
(jueen's  bench  should  be  reversed,  and 
that  the  order  should  be  for  a  new  trial 
generally,  if  the  plaintiff  elects  to  have  a 
newtrial  at  all.  If  lie  does  not,  the  ver- 
dict and  judtiuient  for  the  jilaintiff  for  £0 
will  statu!. 

The  plaintiff  has  succeeded  on  the  ap- 
peal, and  should  therefore  have  the  costs 
of  the  appeal. 

KEI^LY,  (J.  B.,  in  assenting  to  the  judg- 
ment of  the  court,  observed,  that,  if  the 
language  imputed  to  him  in  Francis  v. 
(-'ocki-ell-o  l)e  correctly  reported,  he  must 
have  expresseil  himself  inaccurately,  and 
he  had  no  intention  to  apply  the  doctriue 
in  I{eadhead's  i'ase-i  to  a  contract  for  the 
sale  and  purchase  of  an  article  to  be  ap- 
plied to  a  specific  purpose. 

.Judgment  reversed. 

-0  L.  R.  5  Q.  B.  at  page  503. 
"  L.  R.  4  Q.  B.  379. 


RODLIFF  o.  DALl.INGEK. 


657 


RODLIFF  et  al.  v.  DALLINGER. 

(4  N.  E.  Rep.  805,  14t  Mass.  1.) 

Supreme  Judicial   Court  of  Massachusetts.    Suf- 
folli.    Jan.  U,  isse. 

Excrptions  from  wiipprior  court,  Suffolk 
county;  Knowlton,  .ludtie. 

ThiH  waH  ail  action  of  replevin  to  recov- 
er poHHCSHion  of  L'O  bans  of  California  wool. 
The  i)laintiflH  were  woijldealerHin  15onton, 
and  on  or  about  November  1.'),  1SH2,  deliv- 
ered Hiiid  wcjol  to  one  Henry  ClementHon, 
a  wool  dealer  and  broker  in  Boston.  The 
defendant  was  a  public  warehouHeman  in 
Boston,  and  received  tlie  wool  on  storaKe 
from  Clenipntson  about  November  l.'j,  ISSL', 
not  knowintr  where  he  obtained  it,  and 
iHHued  a  wiirehouso  receipt  fortliewanie  on 
the  day  after  the  delivery  of  the  wool. 
Clementson  ap[)lie(l  to  the  MasHachusettK 
Loan  &  'I'rust  Company,  of  Boston,  for  a 
loan  of  $-,001)  on  tlie  wool  in  the  wnre- 
honse,  and,  after  an  examination  of  the 
article,  the  loan  was  made;  thetrustconi- 
pany  takina  the  warehouse  receii)t  from 
ClenientHon,  having  no  knowledtce  where 
Clementson  obtained  the  wool,  his  Htate- 
ment  beiny  that  he  purchased  the  wool 
to  sell;  and  the  trust  company,  beinp;  the 
real  party  in  interest,  defended  the  suit. 

Dpon  tlie  foreKoiuK  facts  the  court  in- 
structed the  jury  that  there  were  three 
possible  views  of  the  transaction:  (1) 
That  they  misht  find  it  was  an  ordinary 
sale  to  Clementson:  or  ('_')  that  it  wasnot 
a  sale  to  Clementson,  but  was  a  delivery 
to  ('lementHon  as  a  broker,  with  a  view 
to  his  selliuf;  it  to  some  customer,  whom 
he  expected  afterwards  to  negotiate  with, 
and  with  whom  to  consummate  a  sale; 
anil  if  they  found  this,  then  there  was  a 
special  provision  of  the  statute  which 
protects  parties  dealing  in  uood  faith  with 
a  broker  havintr  property  in  that  way,  so 
far  as  they  make  advances  t)r  loans  upon 
property  in  (iledRe.  in  jjood  faith,  to  per- 
sons who  have  custody  of  property  as 
brokers,  witli  authority  to  sell  or  dispose 
of  It;  or  (;i)  tlinl  it  was  not  a  sale  to 
Clementson,  ora delivery  to  liim  as  broker 
with  authority  to  sell,  but  that  it  was  a 
delivery  to  ('leuientson  u|)on  his  represen- 
tation that  became  from  a  iturcliaser  rep- 
resentint;  him,  with  an  offer  for  it,— a  pur- 
chaser he  did  not  disclose,— and  that  tliese 
goods  were  delivered  to  liim  as  the  a^jcnt 
of  that  pun-haser, — as  a  sale  to  that  pur- 
chaser; and  if  that  was  the  fact,  that 
the  phiiTitiffs  were  entitled  to  the  proper- 
ty, not withstnndinK  it  was  subsetiuently 
pledged  to  the  Massachusetts  Loan  & 
Trust  Company. 

The  ((nirt  also  further  instructed  the 
jury  upon  tlie  third  view  "that  if  this  was 
a  transfer  upon  a  false  representation 
made  by  Clementson. — a  representation 
that  he  came  with  an  offer  irom  a  third 
person  whose  name  he  did  not  wish  to 
disclose, — and  the  goods  were  delivered  to 
Clementson  as  a  sale  to  him  as  the  agent 
of  this  third  person,  whose  offer  he  was 
bearing,  with  the  view  that  the  proiierty 
should  pass  at  the  time  to  that  third 
person,  and  thus  constitute  a  sale  to  that 
third  iierson,  from  whom  payment  was 
LAW  SALES — 42 


to  be  made  Bulisequently,  anil  the  pay- 
ment to  be  brought  back  by  Clementson 
as  the  agent  of  that  third  person,  that 
Clementson  had  no  right  afterwards  to 
deal  with  that  property  at  all.  lie  got 
it  into  his  [losseHsion  liy  fraud,  and  he  got 
it  into  his  posHession  without  any  au- 
thority to  make  any  subseiiuent  sale  or 
I  to  do  anything  with  it.  It  was  wrongly 
in  his  possession  from  the  start,  and  any 
person  who  saw  lit  to  ailvan<e  money 
ui)on  it  or  to  buy  It,  however  honestly, 
and  in  perfect  good  faith,  would  be  the 
loser,  and  plaintiffs  could  jiiirsue  the  prop- 
erty, and  get  it  wherever  they  could  find 
it,  whenever  the  frnu<l  practiced  upon 
them  should  come  to  their  knowledge." 

rpon  the  foregoing  facts  and  rulings, 
the  jury  found  for  the  plaintiffH.  and  the 
defendant,  having  duly  excepted  to  the 
third  instruction  of  the  court,  being  so 
much  of  the  judge's  rulings  as  authorized 
the  jury  to  find  for  the  plaintiffs,  prays 
that  these  his  exceptions  to  said  rulings 
may  be  allowed. 

.\lfred  llemenway,  for  plaintiffs.  Henry 
D.  Hyde,  for  defendant. 

HOLMES,  .J.  The  plaintiffs'  evidence 
warranted  the  conclusion  that  they  re- 
fused to  sell  to  Clementson,  the  broker, 
but  delivere<l  the  wool  to  him  on  the  un- 
derstanding that  it  was  sol<l  to  an  undis- 
closed manufacturer  In  good  credit  «lth 
plaintiffs.  This  evidence  was  not  objected 
to,  and  was  admis.Hible,  notwithstanding 
the  fact  that  the  sale  was  entered  on  the 
plaintiffs'  books  as  a  sale  to  Clementson. 
and  that  a  bill  was  made  to  him.  Com.  v. 
Jeffries,  7  Allen,  .'>4S,  ,',(;}.  It  was  admitted 
that  Clementson  in  fact  was  not  acting 
for  such  an  undisclo.'<ed  principal,  and  it 
follows  that,  if  the  plaintiffs'evidenco  was 
oelieved,  there  was  no  sale.  There  could 
not  be  one  to  the  supposeil  piincipal,  be- 
cause there  was  no  such  person  :  and  there 
was  not  one  to  Clementson,  because 
none  purported  to  bemadetohira;  but, 
on  the  contrary,  such  a  sale  was  expressly 
refused,  and  exclude  1.  Edmunds  v.  Mer- 
chants' Despatch  Transp.  Co.,  135  Mass. 
iS3;  .\born  v.  Same,  Iil. 

It  was  suggested  that  this  case  differed 
from  the  one  cited,  because  there  the  prin- 
cipal was  disclosed,  whereas  here  he  was 
not,  and  that  credit  could  not  besupposed 
to  have  been  given  to  an  unknown  person. 
We  have  nothing  to  say  ns  to  the  weight 
whicli  this  argument  ought  to  have  with 
a  jury,  beyonil  observing  that  the  plain- 
tiffs had  reas<in,  in  Clementson's  repre- 
sentations, for  giving  credit  to  the  sup- 
posed manufacturer.  I'.ut  there  Is  no  rule 
of  law  that  makes  it  impossible  to  con- 
tract with  or  sell  to  an  unknown  but  exist- 
ing party,  and  if  the  jury  linil  that  such  a 
sale  was"  the  only  <Mie  that  purportod  to 
have  been  made,  the  fact  that  It  falliMl 
does  not  turn  it  into  a  sale  to  the  party 
conducting  the  transaction. 

Schmaltz  v.  .Wery,  li.  y.  B.  r..">.">,  oidy  de- 
cided that  a  man's  ilescriblng  liiim-elf  In 
a  charter-party  as  "agent  of  thefrelghter" 
is  not  sullicient  to  preclude  liim  from  al- 
leging that  he  is  the  freighter.  It  does 
not  hint  that  the  agent  could   not   be  ex- 


658 


RODLIFF  0.  DALLINGER. 


eluded  by  express  terms,  or  by  the  de- 
scription of  the  principal,  although  insuffi- 
cient to  identify  the  individual  dealt  with, 
as  hai)pened  hin'e;  still  less,  that,  in  favor 
of  third  persons,  the  agent  would  be  pre- 
sumed, without  evidence,  to  be  the  undis- 
closed principal,  although  expressly  ex- 
cluded. 

The  invalidity  of  the  transaction  in  the 
case  at  bar  does  not  depend  upon  fraud, 
but  upon  the  fact  that  one  of  the  sup- 
posed parties  is  wanting,  it  does  not  mat- 
ter h(jw.  Fraud  only  becomes  important, 
as  such,  when  a  sale  or  contract  is  com- 
plete in  Its  formal  elements,  and  therefore 
valid  unless  repudiated,  but  the  right  is 
claimed  to  rescind  it.  It  goes  to  the  mo- 
tives for  making  the  contract,  not  to  its 
existence;  as,  when  a  vendee  expressly  or 
impliedly  represents  that  he  is  solvent, 
and  intends  to  pay  forgoods,  when  in  fact 
he  is  insolvent,  and  has  no  reasonable  ex- 
pectation of  paying  for  them;  or,  being 
identified   by   the  senses,  and  dealt   with 


as  the  person  so  Identified,  says  that  he  is 
A.  when  in  fact  he  is  B.  But  when  one  of 
the  formal  constituents  of  illegal  transac- 
tions is  wanting,  there  is  no  question  of 
rescission,— the  transaction  is  void  ab  ini- 
tio,—and  fraud  does  not  impart  to  it, 
against  the  will  of  the  defrauded  party, 
a  validity  that  it  would  not  have  if  the 
want  were  due  to  innocent  mistake.  The 
sale  being  void,  and  not  merely  voidable, 
or,  in  simpler  words,  there  having  been 
no  sale,  the  delivery  to  Clementson  gave 
him  no  power  to  convey  a  good  title  to  a 
bona  fide  purchaser.  He  had  not  even  a 
defective  title,  and  his  mere  possession  did 
not  enable  him  to  pledge  or  mortgage. 
The  considerations  in  favor  of  protecting 
bona  fide  dealers  with  persons  In  posses- 
sion, in  cases  like  the  present,  were  much 
urged  in  Thacher  v.  Moors,  13t  Mass.  156, 
but  did  not  prevail.  Much  less  can  it  be 
allowed  to  prevail  against  a  legal  title 
without  the  intervention  of  statute.  Ex- 
ceptions overruled. 


ROSS  V.  DRAPER. 


661 


ROSS  et  al.  v.  DRAPEa 

(55  Vt.  404.) 

Supreme  Court  of  Vermont.    Franklin.    Jan. 
Term,  18*5. 

Replevin.  Heard  hy  the  court  on  the 
report  of  a  referee,  .Septetnl)er  term,  1S.S2, 
Royce,  (".  J.,  preHlilinK.  .Jurlgment  for  the 
defendant. 

Farrinuton  &  I'oHt,  for  plaintiff.H.  .John 
I.  (ileed,  for  defeoddut. 

ROSS,  J.  I.  ThiH  ia  an  action  of  re- 
plevin for  a  piano.  The  case  was  referred 
and  came  to  the  county  c€)urt  on  the  ref- 
eree's report.  Such  a  juilKraent  was  then 
to  he  rendered  upon  tlie  facts  reported  as 
any  legitimate  amendment  of  the  declara- 
tion would  admit  of.  An  amendment  al- 
leKintr  that  the  plaintiffs  were  huHlinnd 
and  wife,  and  that  the  piano  was  the 
property  of  the  wife,  would  neither  add  a 
new  cause  of  action  nor  n  new  [larty  to 
the  suit,  an(i  would  bo  permlssilde.  The 
cause  of  action  wouhl  he  the  piano  hoth 
before  and  after  the  amendment,  and  the 
right  in  controversy  would  he  that  of  the 
two  plaintiffs  to  recover  it.  If  the  |>ian() 
is  the  sole  property  of  the  wife,  in  an  ac- 
tion at  law  the  joinder  of  the  husband  as 
H  co-pluintiff  would  be  necessary.  The 
bond  was  conditioned  upon  the  right  of 
the  plaintiffs  to  have  the  piano  delivered 
to  them  as  against  the  defendant  who 
had  attached  it  as  the  property  of  a  third 
person.  Under  the  decisions  of  this  court 
in  regard  to  judgments  on  referees'  re- 
ports, holding  that  the  cause  of  action 
or  subject-matter  in  controvei-sy  is  the 
foundation  of  the  judgment,  if  the  i)leail- 
ings  can  be  so  amended  legally  as  to  con- 
form to  the  facts  reported,  we  entertain 
no  doubt  of  the  right  of  the  plaintiffs  to 
maintain  the  action,  if  the  facts  rPi)ortcd 
entitle  the  wife  to  the  possession  of  the 
piano. 

11.  The  controlling  facts  found  by  the 
referee  are  that  in  ISOi  the  wife's  father 
bought  the  piano  for  her,  and,  in  two  or 
three  months  after,  on  the  occasion  of 
her  attaining  her  majority,  gave  her  a 
birthday  party,  and  in  the  presence  of 
the  asMeml)le(l  guests,  took  lier  to  the 
piano,  toUI  her  tliat  was  her  birthday 
present  from  him  and  that  he  gave  it  to 
her;  that  thereafter  the  family  always 
spoke  of  it  as  lier  property  anil  that  she 
used  and  treated  it  as  such  ;  that  she  re- 
mained at  home  until  her  marriage  in  IStJT; 
that  she  then  went  awa.v  from  home  to 
live,  and  left  the  piano  in  her  father's 
house,  and  never  removed  it  therefrom,  as 
8he  never  had  a  suitable  place  to  put  it: 
that  she  visited  her  lather's  house  from 
time  to  time,  stopping  three  or  four 
months  seven  or  eight  years  ago,  and  had 
been  living  in  her  father's  family  for  the 
last  three  years  and  more,  ami  on  all  these 
occasions  used  and  treated  the  piano  as 
her  own  ;  that  the  piano  remained  all  this 
time  in  the  house  of  her  father:  that  her 
husband  always  treated  It  as  her  sepa- 
rate property;  that  in  1S77  it  was  at- 
tuchedandsold  by  theconsent  oi  herfather 
as  his  property  unbeknown  to  her.  but 
was  not   removed  from  his   house.    There 


la  no  fact  found,  save  his  cousent  to  lt« 
sale,  that  after  the  gift  the  father  ever 
exercised  dominion  over  the  piano  further 
than  to  store  it  In  his  house.  The  only 
question  submitted  by  the  referee  to  the 
court  is  whether  these  facts  constitute  a 
valid  gift  of  the  piano  from  the  father  to 
the  plaintiff  wife.  We  entertain  no  doubt 
on  this  i|uestion.  The  language  used,  as 
:  well  as  the  occasion,  indicate  :i  clear  In- 
tention of  the  father  to  pass  the  title  of 
I  the  piano  to  the  daughter,  and  as  clearly 
her  intention  to  accept  the  gift.  There 
was,  therefore,  the  making  and  accept- 
ance of  the  gift.  He  spoke  of  it,  as  did  the 
family  thereafter,  us  her  property.  .She 
useil  and  treated  it  as  her  property.  This 
must  mean  that  sheassumed  and  exercised 
the  dominion  of  an  owner,  took  and  re- 
tained such  pcissession  us  the  nature  of 
the  pro[)erty  admitted  of,  if  capable  of  be- 
ing locked,  took  possession  of  the  key, 
locked  and  unlocked  it,  used  It  heixelf. 
and  dictated  in  regard  to  its  use  by 
others.  It  matters  not  that  the  property 
was  of  such  a  nature  that  she  could  not 
take  it  into  manual  possc-isiou,  as  shs 
couhl  hare  a  watch,  ring, or  set  <if  jewelry. 
If  the  gift  had  been  of  eitlier  of  the  last- 
named  articles,  and  the  referee  had  found 
that  thereafter  the  daughterever  used  and 
treated  it  as  her  property:  that  the 
father  and  family  so  treated  and  spoke  of 
it,  although  it  had  been  kept  in  her  father's 
house,  and  on  her  marriage  and  leaving 
the  home  of  her  childhood,  because  she 
had  no  suitable  place  to  keep  it  she  still 
left  it  there,  coulil  there  be  the  least 
doubt  It  would  be  a  i)erfected  gift,  that 
the  owner  would  be  the  dnuuhter  both  as 
against  the  father  and  his  creilitors? 
We  think  not.  The  law  recognizes  the 
fact  that  all  species  of  personal  property 
are  not  capable  of  the  same  kind  nf  pos- 
session, and  it  only  requires  the  i>urcliaser 
or  donee  to  take  such  possession  as  the 
character  and  nature  of  the  property  ad- 
mit of.  in  order  to  protect  it  against  at- 
tachment by  the  creditors  of  the  vendor 
or  donor.  Sanborn  v.  Kittreilge.  '.11  Vt. 
(!:Jl':  Hutchins  v.  Gilchrist. '.•;!  \t.  S'J;  llirgo 
v  lidgeiton.  •J><  Vt.  l.".U  ;  Fitch  v.  lUirk.  :i.S 
Vt.  r.s;!:  sterling  v.  Haldwin.  42  Vt.  :!ll. 

The  property  in  contention  was  of  that 
hulk.v  character  that  forbids  manual  pos- 
session. The  only  possession  its  nature 
admitteil  of  consisted  in  its  use  and  treat 
ment  The  treatment  of  an  owner  In- 
cludes acts  of  dominion  and  control.  The 
property  itself  was  such  as  is  much  more 
generally  used  by  females  than  males  unil 
for  that  reason  more  likely  to  be  owned 
by  the  former.  The  occasion  when  the 
gift  was  made,  especially  in  a  country 
town,  would  give  notoriety  to  the  trans- 
action equal  to  a  sale  In  market  overt.  It 
is  to  lie  remembered  that  in  these  days 
it  is  not  an  uncommon  thing  for  the  wife 
and  the  chililren.  while  living  at  hon)e, 
each  to  have  and  ke<>p  separate  property 
in  the  common  home  of  them  all.  It  is 
not  a  matter  of  course,  and  no  creditor 
has  the  right  to  assume,  that  nil  the  per- 
sonal property  in  the  house  belongs  to 
the  husband  and  father.  It  Is  not  uncom- 
mon for  the  ilnughters  to  have  roouis  sot 
apart   lor  their  special  use.  furnished  with 


662 


KOSS  V.  DRAPER. 


furniture  purchased  by,  or  giveu  to  them, 
nor  for  them  to  own  Hewing  machines  or 
musical  instruments.  The  facts  reported 
do  not  show  a  joint  possession  of  the 
piano  by  the  fatlier  and  daughter  during 
the  two  or  three  years  she  was  at  home 
after  the  gift  and  before  her  marriage,  nor 
after  tier  marriage.  Ho  allowed  it  to  be 
kept  upon  premises  owned  hy  him.  This 
was  the  extent  of  his  use,  control  and 
acts  of  ownership,  save  alone  his  consent- 
ing to  its  sale  on  his  debt  some  twelve  or 
thirteen  years  after  he  had  given  it  away, 
and  this  act  was  not  known  by  the  daugh- 
ter until  long  after  it  transpired.  The 
attaching  creditor,  who  was  the  pur- 
chaser at  the  sale,  never  took  possession 
of  it.  The  defendant  attached  it  as  the 
property  of  such  purchaser.  He  found  it 
not  in  his  possession  hut  on  the  premises 
of  the  father,  and  in  the  possession  of  the 
daughter.  He  was  bound  to  take  notice 
of  the  fact  that  tlie  property  he  was  at- 
taching was  not  in  the  possession  of  the 
debtor,  and  was  bound  to  inquire  ot  those 


I  on  whose  premises  and  in  whose  posses- 
sion he  found  it,  for  whom  they  had  the 
]  piano  in  store  and  in  possession.  Hild- 
ireth  v.  Fitts,  .")3  Vt.  GS4.  lieing  bound  to 
I  inquire,  he  and  the  creditor  for  whom  he 
i  was  acting  were  affected  by  all  the  knowl- 
j  edge  that  would  be  gained  by  such  in- 
quiry. He  would  have  learned  of  the  gift, 
of  the  notoriety  that  accompanied  the 
I  making  of  it,  that  thereafter  the  father 
I  and  family  spoke  of  and  treated  it  as  the 
I  property  of  the  daughter;  that  she  al- 
I  ways  so  used  and  treated  it,  and  for  over 
I  two  years  before  her  marriage  had  it  in 
I  her  personal  possession,  so  far  as  the  na- 
I  ture  of  the  property  was  capable  of  per-* 
;  sonal  possession.  The  transaction  was 
I  natural,  honest,  notorious,  and  of  long 
!  standing.  There  was  no  fraud  in  fact  in- 
I  tended  or  attempted.  The  property  was 
j  not  in  the  possession  of  the  debtor,  hence 
no  fraud  in  law. 

Judgment  reversed,  and  judgment  ren- 
dered for  the  plaintiff  to  recover  nominal 
I  damages  and  costs. 


ROWLEY  V.  HIOi:r,()W. 


665 


ROWLEY  et  al.  v.  BIGELOW  et  al. 

(13  Hck.  307.) 

Supremo  Judicial  Court  of  Massachusetts.     Suf- 
folk and  Nantucket.     March  I'J,  1S.'J2. 

Trover  for  Gl.'7   biislielH   of  yellow  corn, 
valued  ut  ;">,")  cents  a  IiuhIioI. 

At  the  tiial,  before  Wilde,  .1.,  it  vva.s 
jjroved  by  the  plaintiff.s,  that  on  the  24tli 
of  May,  ls:!IJ,  the  corn  belonj^ed  to  them 
and  waH  in  their  imishpskIoi),  in  tlicclty  of 
New  York,  on  board  the  sloop  Milnn,  of 
which  S.  iJiuininy:,  one  of  the  pInintiffH, 
was  master,  and  that  it  was  ni(>aKun-d 
and  delivered  onboard  the  schooner  Lion. 
They  alle^^ed  that  one  William  N.  Martin, 
a  merchant  there,  fraiidnlontlv'  obtained 
po.<)session  of  it  by  pretending  to  (nrchase 
Itfnrcasli;  and  it  was  proved  that  on  the 
25th  of  Afay  he  shipped  it  on  board  the 
Lion,  consif;ue<l  to  the  defendants  at  Bos- 
ton, and  that  thevessel  sailed  in  the  after- 
noon of  that  day  for  HosKjn.  On  the 
2(ith,  DnnniriK,  havins  ineffectually  de- 
luandcil  payment  for  the  corn,  at  .Martin's 
countinK-hoiise,  proceeded  to  Hoston  to 
reclaim  it.  He  reached  Boston  before  the 
arrival  of  the  Lion,  anil  <>ii  tlie  "J'.tth  jji'^'e 
notice  to  the  defendants,  to  whom  by 
Martin's  orders  the  corn  was  to  lie  deliv- 
ered, that  .Martin  had  frandnlently  ob- 
tained it  from  the  plaintiffs, and  that  they 
intended  to  repossess  themselves  of  il.  On 
the  :iOth.  when  the  Lion  had  arrived  in 
Boston  hailiour,  DnnniiiK  boarded  her 
and  demanded  of  the  master  possession  of 
the  corn.  Riving  him  notice  that  .Martin 
had  obtained  it  fraudulently  from  the 
plaintiffs.  The  master  notwitltstanding 
delivered  it  to  the  defendants  ;  after  wliich 
DiinninR  demaniled  it  of  tliein  and  ten- 
dered them  any  freight  or  charnes  w  hich 
they  had  paid.  They  refused  to  deliver 
the  corn,  and  thereupon  the  suit  was  com-  ] 
nienced.  j 

In   order   to   establish   the  fraud  on    the' 
part  of  Martin,  the  plaintiffs  r?lied    on  the; 
dei)ositions  of   (".  A.  .lackson    and    others, 
merchants  in  New  York,  who  testilied  that  ' 
Martin    had    inacie  similar    pnrehases    of 
them  about  the  same  time,  and    under  cir- 
cumstances tending  to  show  that   he  was 
insolvent,  and   that    he   knew  it   and  had 
no  reas()nal)le  expectation    of   paying   for 
the  merchandise  according  to  liiscontraet. 
The  defendants  objected    to  the  admission 
of  these  depositions,  but  the  Judge  permit- . 
ted  tliem  to  be  read  to  the  jury.  ' 

The  defendants,  to  establish  their  right 
to  hold  the  corn  against  the  i)laintiffs,  of- 
fered in  evidence  a  bill  of  lading,  dated 
May  17th,  In;1(),  signed  by  the  master  of  the 
Lion,  purporting  to  tie  for  "Jdiill  linshels  of 
yellow  c<irn  shipiied  by  Martin  and  con- 
signed to  the  defendants ;  iilso  an  invoice 
coiresponiling  to  the  bill  of  biding  and 
purporting  to  be  for  20(Hi  bushels  of  corn 
consigned  to  the  defendants  for  sale  on 
the  shipper's  account,  and  signed  by  Mar- 
tin: also  a  letter  from  Martin  to  the  de- 
fendants, dated  May  ITtii  (to  which  the 
bill  of  lading  and  invoice  were  annexed) 
advising  that  he  v.'ilued  on  them  in  favor 
of  Henry  Beniien  for  .« lOiH).  at  ten  days' i 
sight,  anil  tlirectiiig  them,  if  he  had  valued 
toomueh  on  this  shipment,  to  charge  it  to  | 


some  previous  one.  there  being  an  exJHt- 
Ing  account  lietween  .Martin  anil  the  de- 
fendantH.  And  it  was  proved  that  a  bill 
drawn  accordingly  by  .Martin,  wan  ac- 
cepted by  the  defendants  on  the  Ltjtii  of 
May  and  paid  by  them  at  maturitv. 

There  was  no  evidence  that  the"  defend- 
ants had  any  knowledge  of  the  fraudulent 
conduct  of  .Martin,  but  it  appeareil  that 
they  ri-cBived  the  bill  of  lading  and  invoke 
and  accepted  the  draft  in  the  UHUal  courHC 
of  business. 

Upon  this  evidence  the  Judge  ruled,  that 
the  defendants  had  a  good  title  to  the 
property  notwithstanding  the  fraudulent 
conduct  of  .Martin,  and  notwithstanding 
the  liill  of  biding  had  been  signed  before 
the  corn  was  shipped;  to  which  the  plain- 
tiffs e.vcepted. 

A  verdict  was  taken  for  the  defendantB 
by  consent;  and  if  the  whole  court  should 
be  of  opinion  that  they  had  a  valid  title 
to  the  corn,  under  the  invoice  and  bill  of 
lading,  judgment  was  to  be  rendered  upon 
the  verdict;  but  if  the  court  should  be  of 
oiiinion  that  the  ruling  was  wrung,  the 
verdict  was  to  be  set  aside  and  the  defend- 
ants defaulted,  unless  the  court  should 
also  be  of  opinion  that  the  depositions 
above  mentioned  were  improperly  admit- 
ted ;  in  which  case  a  new  trial  was  to  be 
granted. 

Fletcher  and  W.  . I.  Hubbard,  for  plain- 
tiffs.    Curtis,  for  defendants. 

.SH.WV.  C.  .1.  The  first  i|uestlon  arlRlng 
in  this  cause  is,  wliether  the  depositionH 
of  .lai'kson  and  others,  under  the  circum- 
stances, ought  to  have  been  admitted  aa 
coni|ietent.  These  were  generally  persons, 
of  whom  Martin  had  made  Himilar  pur- 
chases, of  like  articles,  abont  the  same 
time,  and  under  circumstances  tending  to 
show  that  he  was  insolvent  and  had  no 
reasonable  expectation  of  paying  (or  the 
niercliandise  according  to  his  contract. 

The  objection  to  this  evidence  is  placed 
on  two  grounds,  first,  that  these  persotiH 
ha ving  similar  claims  of  their  own,  some 
of  which  are  pending  here,  they  have  an 
interest  in  estnblishlng  the  fraud  which 
they  are  called  to  prove;  and  sccimdly, 
that  the  transactions  being  res  inter  alios, 
have  no  tendency  to  prove  the  fact  in  la- 
sue  in  this  particular  case. 

But  in  our  opinion,  the  ol>jectlon  cannot 
be  sustained  u|ion  either  ground.  ;\h  Io 
tile  lirst,  it  is  unite  clear,  that  the  verdict 
and  judgment  in  this  case  would  not  lie 
evidence  in  either  of  theirs;  tliat  their  in- 
terest is  in  tiie  iiiiestion  and  sulijivt  mat- 
ter and  not  in  tiic  event  of  the  suit,  and 
therefore  that  the  objection,  such  as  it  is, 
goes  to  the  credit  and  not  tothecompe- 
tenc.v  of  the  witnesses.  .\s  to  the  other 
objection,  we  think  tills  evidence  has  a 
direct  and  material  bearing  uiuin  tlie  fact 
in  issue.  It  tends  to  sliow.  that  at  the 
time  tills  ostensible  purchase  was  made, 
.Martin  was  insolvent,  that  he  knew  he 
was  insolvent,  that  he  had  no  rensonalile 
ground  to  lielieve  that  he  could  pay  the 
cash  and  did  not  expict  or  intend  to  pay 
the  cash  for  the  merrhandi-e  wliicii  he  pur- 
chased,and  so  that  he  olitained  the  goods 
by  false  pretcnccH.     Thefact  of  insolvency. 


666 


EOWLET  V.  BIGELOW. 


of  his  kiiowledjie  of  his  insolvency,  and 
that  he  liad  no  expectation  or  intention  of 
paying  for  the  corn  in  question,  is  a  mate- 
rial fact  and  the  princi|)al  fact  in  contro- 
versy on  which  this  case  rests,  and  is  ma- 
terial to  the  issue.  The  evidence  iK'ars 
upon  tlie  question  quo  animo,  the  Intent, 
the  fraudulent  purjiose.i 

:.'.  It  is  next  contended  on  the  part  of 
the  plaintiffs,  that  no  property  passed  by 
the  fraudulent  purchase  of  Martin,  from 
the  plaintiffs  to  him,  so  as  to  enable  him 
to  make  a  title  to  tlie  defendants. 

The  evidence  clearly  shows  that  there 
was  a  contract  of  sale  and  an  actual  de- 
livery of  the  goods,  by  their  being  placed 
on  board  a  vessel,  pursuant  to  his  order; 
and  tills  deliver}-  was  unconditional,  un- 
less tliere  was  an  implied  condition  aris- 
ing from  the  usage  of  the  trade  that  the 
delivery  was  to  be  considered  revocable, 
unless  tlie  corn  should  be  paid  for,  pursu- 
ant to  tlie  contract  and  to  such  usage. 
This  contract  and  delivery  were  sufficient 
in  law  to  vest  the  property  in  Martin, 
and  make  a  good  title,  if  not  tainted  b.y 
fraud.  But  being  tainted  by  fraud,  as 
between  tlie  immediate  parties,  the  sale 
was  voidable,  and  the  vendors  might 
avoid  it  and  reclaim  tlieir  property.  JJnt 
it  depended  upon  them  to  avoid  it  or  not, 
at  their  election.  They  miglit  treat  the 
sale  as  a  nullity  anil  reclaim  their  goods; 
or  affirm  it  and  claim  the  price.  And 
cases  may  be  imagined,  where  the  vendor, 
notwithstanding  such  fraud,  practised  on 
him,  might,  in  consequence  of  olitaining 
security,  by  attaclui.ent  or  otherwise, 
prefer  to  affirm  the  sale.  The  consequence 
therefore  is,  that  such  sale  is  voidable,  but 
not  absolutely  void.  The  consent  of  tlie 
vendor  is  given  to  the  transfer,  but  that 
consent  being  induced  by  false  and  fraud- 
ulent representations,  it  is  contrary  to 
justice  and  right,  that  the  vendor  should 
suffer  by  it,  or  tliat  the  fraudulent  pur- 
chaser should  avail  himself  of  it:  and 
upon  this  ground,  and  for  the  benefit  of 
the  vendor  alone,  the  law  allows  him  to 
avoid  it. 

The  difference  between  the  case  of  prop- 
ert.v  thus  obtained,  and  propertj'  ob- 
tained by  felony,  is  obvious.  In  the  lat- 
ter case,  no  riglit  either  of  property  or 
possession  is  acquired  and  the  felon  can 
convey  none. 

We  take  the  rule  to  be  well  settled,  that 
where  there  is  a  contract  of  sale,  and  cin 
actual  deliver.v  pursuant  to  it,  a  title  to 
the  property  passes,  but  voidable  and  de- 
feasible as  between  the  vendor  and  ven- 
dee. If  obtained  b.v  false  and  fraudulent 
representations.  The  vendor  therefore 
can  reclaim  his  property  as  against  the 
vendee,  or  any  other  person  claiming 
under  him  an<l  standing  upon  his  title, 
but  not  against  a  bona  tide  purchaser 
■without  notice  of  the  fraud.  The  ground 
of  exception  in  favor  of  the  latter  is, 
that  he  purchased  of  one  having  a  pos- 
session   under    a    contract    of    sale,   and 

iSee  Bottomlev  v.  United  States,  1  Storv  R.  13.5; 
Bradford  v.  Boviston  F.  &  M.  Ins.  Co.  11  Pick.  IB'J; 
Rex  V.  Hough,  i  Russ.  &  Ry.  120;  Rex  v.  Ball,  ibid. 
132;  Rex  v.  Dunn,  1  Mood.  Cr.  Cas.  14(i;  Rex  v. 
Hunt,  3  Barn.  &  Aid.  566 ;  Phillips  &  Amos  on  Evi. 
(8th  Lond.  ed.)  494. 


with  a  title  to  the  property,  though  de- 
feasible and  voidable  on  the  ground  of 
fraud;  but  as  the  second  jiurchaser  takes 
without  fraud  and  without  notice  of  the 
fraud  of  the  first  purchaser,  he  takes  a 
title  freed  from  the  taint  of  fraud.  Parker 
V.  I'atrick,  5  T.  R.  175.  The  same  rule 
holds  in  regard  to  real  estate.  Somes  v. 
Brevver,  2  Pick.  1S4. 

3.  Another  ground  is,  that  the  plaintiffs 
had  «  right  to  stop  in  transitu,  and  exer- 
cised that  right,  in  sufficient  season,  by 
demanding  the  goods  of  the  master  on  his 
arrival  at  Boston,  and  before  the  goods 
readied   the  hands  of   the   defendants. 

The  right  of  stoppage  in  transitu  is 
nothing  more  than  an  extension  of  the 
right  of  lien,  which  by  the  common  law 
the  vendor  has  upon  the  goods  for  the 
price,  originally  allowed  in  ecpiity  and 
subsequently  adopted  as  a  rule  of  law. 
By  a  bargain  and  sale  without  delivery, 
the  property  vests  in  the  vendee;  but 
where,  by  the  terms  of  snle,  the  price  is 
to  be  paid  on  delivery,  the  vendor  has  a 
right  to  retain  the  goods  till  payment  is 
made,  and  this  right  is  strictly  a  lien,  a 
right  to  detain  and  hold  the  goods  of  an- 
other as  security  for  the  iiayment  of  some 
debt,  or  performance  of  some  duty.  But 
when  the  vendor  and  vendee  are  at  some 
distance  from  each  other,  and  the  goods 
are  on  their  way  from  the  vendor  to  the 
vendee,  or  to  the  place  by  him  appointed 
for  their  delivery,  if  the  vendee  become  in- 
solvent and  the  vendor  can  repossess  him- 
self of  the  goods  before  they  hare  reached 
the  hands  of  the  vendee  or  the  place  of 
destination,  he  has  a  right  so  to  do.  and 
thereby  regain  his  lien.  This  however 
does  not  rescind  the  contract,  but  only  re- 
stores the  vendor's  lien  ;  and  it  can  only 
take  place  when  the  property  has  vested 
in  the  vendee. ^ 

Without  considering  what  would  have 
been  the  effect  of  the  bill  of  lading  in  de- 
feating the  vendor's  right  tostop  in  tran- 
situ, had  the  place  of  destination  been 
Boston,  we  are  of  opinion  that  upon  an- 
other ground,  the  right  did  not  exist  in 
tlie  present  case. 

What  does  or  does  not  constitute  a 
journey's  end,  and  the  termination  of  the 
transit,  may,  in  man.v cases,  be  a  question 
of  difficulty  and  has  often  been  a  subject  of 
discussion.  But  here  we  think  it  very 
clear,  that  a  deli\ery  of  the  corn  on  board 
of  a  vessel  apiiointed  by  the  vendee  to  re- 
ceive it,  not  for  the  purpose  of  transporta- 
tion to  him,  or  to  a  place  appointed  by 
him  to  be  delivered  there  for  his  use,  but 
to  be  shipped  b.y  such  vessel,  in  his  name, 
from  his  own  place  of  residence  and  busi- 
ness to  a  third  iierson,  was  a  termination 
of  the  transit,  and  the  right  of  the  vendor 
to  stop  in  transitu  was  at  an  end.  Noble 
V.  Adams,  7  Taunt.  59.3 

4.  It  is  contended   that  the  defendants 

'See  Clay  v.  Harrison,  10  Barn.  &  Cressw.  99; 
James  v.  Griffin,  2  Mees.  &  Welsby,  632;  Edwards 
V.  Brewer,  ibid.  379;  People  v.  Haynes,  14  Wend. 
566. 

3  See  Bolin  v.  Huflnagle.  1  Rawle,  9;  Allan  v. 
Gripper,  2  Crompt.  &  Jervis,  218;  Foster  v.  Framp- 
ton,  6  Barn.  &  Cressw.  107;  Townley  v.  Crump,  5 
Kev.  &  Mann.  606;  Buckley  v.  Furniss,  15  Wend. 
137 ;  Newhall  v.  Vargas,  1  ShepL  93. 


UOWLKY  c.  BIOKLOW. 


667 


were  not  purchoserH  for  a  valuable  conxld-  ] 
eratioi)  mid  bona  fide,  ho  hh  to  he  entitled 
to  the  l)crii'lit  of  the  e.\ce[)tion    in    their  fa- 
vor.    I5ut  we  are  (jf  o|iinioii  tluit    they  do 
Btund  in  that  relation,  ami  are  entitled  to 
the  benefit  of  it.     It  appearH  that  they  ad- 1 
vaneeil,  either  in   ea.sh    or   liy    the   accept- 1 
anee  of  Niartin'n  draftH   in    favor   of   third 
pernonH,  to  an  amount  e(iual    to  tlie  value 
of  the  RoodH,  and  that  after   having   heen 
(uriiLslied  with    liill    of   lading  ami  invoice  ; 
and    in    flit;   ordinary   courwe  of   Idisincss. 
TlieKround  upon  which  tlie  plaintiffn  rely  [ 
iB,  that  at  the  time  the  hill    of   lading  waH  ' 
Bitined,  the  corn  was   not   on    lioard,  and 
in  fact,   as   appear.s   by    a    coniparinon    of 
datcH,    had    not    been     purduiHcd    of    the 
pluintiffH.     This    wan   undoubtedly    irre;;- 
ular;  and    if   done   by   eollu.slon     between 
Martin  and  the  master  to   enable   the  for- 
mer to  net  money  or  credit  on    the   bill  of  i 
ladins;,  waH  a    Krcs.s   fraud    upon  any  iier- 1 
son  deceived  l)y  it.    But  it  is  not  perceived  ; 
how  tlie  plaintiffs  can  avail    themselves  of 
this,  Bupposing  it  to  be  a  frautl.     A    hill  of 
Indins  is  a  contract    of  carriage   for   hire, 
by  which  the   master  enjiajjces   to   deliver 
the  !;oo(ls  to  the  shipper  or  his  order,  and 
BO    is    <iuasi   ucKotiable.     It    operates    by 
way  of  estoppel   anainst  the  master   and 
also  against  the  shipper  and  indorser. 

The  hill  of  lading  acknowledges  the 
goods  to  be  on  board,  and  regularly  the 
goods  ought  to  be  on  hoard  before  the  hill 
of  lading  is  signed.  But  if,  through  inad- 
vertence or  otherwise,  the  bill  of  lading  is 
signed  before  the  goods  are  on  hoard,  upon 
the  faith  and  assurance  that  they  are  at 
hand,  as  if  they  are  received  on  the  wharf 
ready  to  he  shipped,  or  in  the  shipowner's 
warehouse,  or  in  the  Bhip|)ur's  own  ware- 
house, at  hand  and  ready,  and  afterwards 


they  are  placed  on  l)onrd,  an  and  for  the 
gooils  embraced  in  tlie  bill  of  lailing,  we 
think,  as  against  the  shipper  and  inaHter, 
the  hill  of  lading  will  operate  on  theHe 
goods  by  way  of  relation  and  by  CHtoppel. 

It  is  asked,  how  lung  after  the  Higna- 
tiire  of  the  bill  of  lading  property  may  be 
delivered  on  bo'ird,  so  as  to  he  bound  by 
it  and  become  the  subjirt  on  which  It 
shall  operate.  We  (lilnk.  at  any  time 
whilst  the  vessel  is  taking  in  her  cargo  for 
that  voyage,  as  describrd  in  the  bill  of 
lacling,  and  before  she  sails  u|ion  It.  Here 
there  was  a  time,  when  the  bill  of  lading 
might  have  been  [iroperly  signed  liy  the 
master,  namely,  after  the  corn  was  <lellv- 
ered  and  before  the  veHsel  sailed;  and  It  is 
admitted  that  this  was  ri'ceived  asand  for 
thecorn  mentioned  in  the  bill  of  lading.  And 
it  can  make  no  difference  to  the  plaintiffs, 
whether  the  hill  of  lading  was  signed  after 
this  shipment,  or  a  few  days  before.  In  an- 
ticipation of  snch  shipment.  Supposing, 
then,  that  when  the  goods  were  bhipped, 
as  against  the  shipper  and  master  the  bill 
of  lading  operated  upon  this  property  and 
would  have  bound  the  master  to  ileliver  It 
to  theconsignec,  as  we  think  It  would,  then 
by  the  uniform  course  and  jiractice  of  mer- 
chants, the  hill  of  lading  repre*ents  the 
property,  and  any  bona  fide  title  for  valu- 
able consideration  obtained  liy  a  trans- 
missioii  or  negotiation  of  the  bill  of  lad- 
ing, gives  as  valiil  and  effectual  a  title  tu 
the  goods,  as  could  he  obtained  by  an  ac- 
tual delivery  of  the  goods  themselveu.* 
The  defendants  have  shown  such  a  title, 
and  therefore  the  order  of  the  court  must 
be 

Judgment  on  the  verdict. 

•See  Allen  v.  Williams,  12  I'iik.  297. 


k 


HUllL  V.  CORNER.                                                       669 

RUUL  et  al.  v.  CORNER  et  ul.  i  gui-Ht  of  the  24th  t<.  Bend  as  a  cur  witboat 

(63  Md.  179.)  Urnft   to  ((jver  the   niurt;mH  on  Hhl|iineDt8 

now  oil  hiind. " 

Court  of  Appeals  of  Maryland.     Feb.  12,  IS8.V  Corner  nays  in  the  tcHti'nonv  he  Hohl  the 

Before   ALVKY,   C.   .1.,  an<l    YELLOTT.  "''m,  ".',!.  ''"'/*''', '"    t'^'-ru'Ty.  ulthouKh 

STONE.  >!ILLi;i{.  HOIUN.SON,    1I{VIN(J.  "  V  VVi J'     '.       """"fy '"'' "^'".'^   ^'*-"'"'"V 

niwi  UKVAM    II  '"^   ""''    recelve'l    no   offerH,  an<l  iJoeH   not 

'^"                    •  npi.riHe    him    of  a   uale   until    the  4th   of 

\V.  Irvine  Cross  and  John  K.  Cowen,  for  March, 

appellants.     Joseph   C.    France   and  John  The  hill  of  ladinj;,  though  ismied  on    the 

J'reiitiHH  Poe,  for  up|>eHee.  ."lOtli    of   January,  was    dated    back  to  the 

21st  of  January    to   correspoml    with    the 

mVI.NG,  J.     the   appellee   l)einK  a  com-  actual  Hhipnuiit.     This  bill  of  ladiiiK  in  fii- 

mission    nicrcliant   In   lialUmore.  between  vor  of  liuhl  ii;  .Son,  with  draft  on  tlieni  for 

the  inontli  of  AuKust,  Ixsl,  and  the  month  ffil.".,  was  presented  bv  .Merlon    to    the  Se- 

of   January,    lSs2,    received    consiKninentrf  curity    Dank    of    .MiniKHota.  and  the  draft 

of  Hour  from    Oliver  Merion,  of  MInneapo-  was  cuslied    by  the  bank,  which  sent  both 

lis,  .Minnesota,  for  sale  upon  commission,  bill   of   Inilin;;   and    draft   to   the  Bunk  of 

Upon    the   21st   of  January,    lsv.>,  Merion  Commerce   in    lialtimore,  at    which    bank 

shipped    to    Corner    &  Co.,  without  order,  1  Ruhl  &  .Son  paid    the  draft  and  received  In 

a  car-load  of  "Cliampion"  Hour,  beiiiK  one  consiileration    of  such    pa vment,  via.,  the 

hundred  and    twenty-live   barrels,  by  Mil  bill   of   IndiuK  tor  the  flour.     AscertainlnB 

waukee   and  St.  Paul  Hailroad  and  Haiti-  the  tlour  had  been  received  bv  Corner,  ap- 

more  and  Ohio  Railroad  via  Chicago.     On  pellants  in  the  latter  part  of  ivi.ruary,  or 

the  same  day  he  wrote  Corner   &   Co.  ad-  early    in    March,  demanded     pavnient   for 

visiiiK    of  this    shipment,  and    naininfr   a  the  same;  and    the   Haltimore   and    ohlo 

price   at  which    Corner,  his   factor,  should  Railroad    also    in    .March    demanded    the 

sell    the  same.     No    bill  of  lading  was  sent  flour. 

to  Corner  &  Co.;  but  at  the  time  of  the  Cpon  this  state  of  facts  the  qucHtian 
shipment  a  shipping  receipt  was  taken  arises,  who  was  entitled  to  this  flour— the 
from  the  railroad  for  the  flour,  and  that  appellants,  or  the  appellee?  It  is  conceO- 
witli  a  draft  on  Corner  &  Co.  for  five  hun-  ed  that  no  bill  of  UkHiiii  or  invioce  was 
deed  dollars  was  placed  in  bank  for  trans-  ever  sent  to  or  received  by  Corner;  where- 
mission  to  Baltimore,  but  was  8ul)se-  as  it  is  equally  well  established  and  not 
tiuently  withdrawn,  and  was  never  sent,  denied,  that  Ruhl  <3c  Son  did  receive  a  bill 
Sul)se(iuent  to  the  shipment  to  Corner  &  of  lading,  and  did  pay  n  draft  on  them  for 
(,"().,    Merion    received    an    order   tor   Hour  ?til."i  on  it. 

from    Conrad    Rulil   &   Son  of    Baltimore.  The  appellants  insist,  that  although  the 

and  decided  to  change    the   sliipment    and  flour  was   originally  shipfied    to  Corner  & 

to   send    to    Kuhl   &  .Son  this   car   of  C.ur  Co..  it  was  sosliipiied  without  their  order, 

on    their   order.     Accordingly,  on  the  JJth  and    that  afterwards,  and  while  it  was  in 

of  January,  1^S2.  the  railroad  linvinn  been  the  power  of  the  shi|iper  to  doso.  the  con- 

noti(i(Ml,    its   atient    at    .Minneapolis    tele-  si;;iiinent  was  chuuKed.  and  the  flour  was 

graphed  the  CliicaRo  agent  to  hold  the  car  si  Id    to    Ituld   &   Sons,  to    whom   a  bill  of 

of  flour,  as   Merion  wished    to  clian«e  the  ladin;;  and  ilraft  were  sent,  ani  who  (laid 

consignment  to  Ruhl  &  Son.     On    the  :Wtli  theref<ir.       'i'hey    claim    that    title    never 

of   .laiiuary,    the  original  receipt  was  Hiir-  passed    from    .Merion  to  Corner  ic  Co.,  but 

rendered    to  the   railroad  agent  at  Minue-  that  it  did  pass  to  Ruhl  &   Son.     The  ap- 

apolis,  and    a    bill    of  lading  for  the   Hour  pellants  further  and  si  rongly  relied  on  the 

was  taken  out  to  Huhl  &  .Son.     Tne  agent  act  of  lS7(i.  chap.  2('i2.  in    respect  to  bills  of 

on    the  24tli  had    taken    steps  to  hiive    the  lailiiig,    and    the   effect    of    tin-    possession 

address  of  Corner  >V:  Co.  removed  from  the  of  such  bills  of  lading  upon  title.     But  the 

car,  and    tt)    have  that  of  Huhl  &  Son  sub-  decision  of  this  case  does   not  involvean.v 

stituted.     lie   telegraphed    to   ("liicugo  di-  consideration  by  the  court  of  thei'ffwtof 

rccting  this  change  to  lie  made,  but  It  was  the  net  of  isTG  or  what  constructl:)n  shall 

neglected,  and    the   Hour  came  through  to  be  given  it:  for  there  are  well  settled  prln- 

Balliniore   labeled    for   Corner    i*i  Co.,  and  ciples   establisliefl    and  acted  upon  In  very 

was    delivere<l     to    them;    the    Baltimore  many  cases,  which   will    control    the   deci- 

agents   of  the   railroad  not  being   advised  sioii  of  this  case   irrespective  of  any  act  of 

of  the  change   ot  destination,  and    Corner  assembly. 

&  C(».  as   yet,  liaving  received  no  informn.  It  is  the  well-settled  law,  that  the  ilellv- 

tlt)n    of   Merlon's   change   of  purpose,  unci  ery  of  goods  to  a  common   carrier  for  one 

the  actual  consigninent,  by  bill   ol  lading,  who  has  purchased   and   wlio  has  ordered 

to  Ruhl  &    Son.     The    proof   shows,    that  them,    is    a    delivery     to    the     purchaser, 

on    the   21th    of  .lanuary.  three  days  after  though    it  does   not  amount  t<i  an  accept- 

the  shipment  spoken  of.  but    before  Corner  mice   of    them.     I    Benjamin    on  Sales,  pp. 

knew    of   it,  he  wrote  to    Merion  ad  vising  1S2  and  HI."..     But  it  is  equally  well  settled, 

against    furtkier   shipments  unless    .Merion  that    where   goods    have    lieeii  shipped  to 

cho.se    to    ship    a    ear   of  "Clematis"  Hour,  one  who  has  not  ordered   them,  title   doP8 

without  draft,  as  the  margins  on  the  Hour  not    jiass    to  the   consignee  by  delivery  to 

still    on    hand    were    exh.nusted.      On    the  the   carrier,  and    the    r'ght    to  change  the 

2(lth    of    .laiiiiaiy.    Corner     acknowledged  consignment    and    destination    during  the 

the   receipt    of  the  letter  telling  him  of  the  transportation     reinaiiiH    in    the   shipper: 

shipment   of   "Champion."     promising    it  ami  this  is  so  far  the  manifest  reason  that 

should  lie  sold  for  the  best  prices. and  say-  there   is   a  want   of   the  essential  element 

ing,  "  we  note  you  havenot  made  draft  on  of  mutual  assent  to  constitute  a  contrnct 

this   car,  as    if"  in    anticli  ation    of    our  re-  ol  sali-.     So  that  in  all    rases   w  here  goodn 


670 


RUHL  V.  CORNER. 


are  shipped  upon  the  account  of,  juid  at 
the  risk  of,  the  shipper,  this  right  remains 
in    him.     The   Francis,    (Boyer,     Master.) 

5  Cranch,  418;  Mitchel  vs.  Ede,  et  al.,  11 
Adolphus  &  Ellis.  SS8;  Scothorn  vs.  The 
South  Staffordshire  Railway  Co.,  8  Exch., 
:U();  3  Condensed  Rep.  U.  S.,  L'4."),  and 
notes;  Elliot  vs.  Bradley,  et  al.,  23  Ver- 
mont, 217;  Hodses  &  Co.  vs.  Kimhall  & 
Fariisworth,  4!l  Iowa,  577;  Hutchinson 
on  Carriers  sees.  134  and  337;  Blanchnrd, 
et  al.  vs.  Page,  et  al.,  8  Gra.v,  285;  and 
Walter  vs.  Ross,  2  Wash.  Cir.  Ct.  Rep.  28(i. 
In  this  last  case  of  Walter  vs.  Ross,  the 
subject  was  fully  considered,  and  .ludse 
Wasliington  says,  "the  factor  has  no  in- 
terest or  property  in  the  goods  beyond  his 
commissions,  and,  of  course,  cannot  con- 
trovert the  right  of  his  principal.  If,  in- 
deed, ho  be  a  creditorof  the  shipper,  he  has 
a  contingent  interest  in  virtue  of  his  right 
of  lien  which  the  possession  would  give; 
but  for  the  perfection  of  his  right  he  must 
acquire  and  retain  an  actual  possession  of 
this  property — constructive  possession 
will  not  do." 

The  same  principles  a  re  declared  in  Gros- 
venor  &  Starr  vs.  Phillips,  2  Hill,  (N.  Y.,) 
147,  and  in  Bank  of  Rocliester  vs.  Jones,  4 
Comstock.500.  In  Boiiner,  et  al.vs.  Marsh 
et.  al.,  10  Sm.  &  Mar.,  37G:   Chaffe  vs.  Miss. 

6  T.  R.  R.  Co.,  m  Mi.ss.,  185;  Woodruff  vs. 
Nashville  and  Chattanooga  R.  R.  Co.,  2 
Head,  87,  and  several  other  Tennessee 
cases,  the  law  is  laid  down  more  strin- 
gently, as  against  the  factor,  than  the 
weight  of  authority  justifies.  There  can 
be  no  doubt,  upon  the  weight  of  authority , 
that  if  the  factor  havecluims  foradvances 
against  his  principal,  and  it  be  expressly 
agreed,  that  goods  shall  be  8hi|)pfd  to  the 
factor  to  pa.v  tho.se  advances,  tlien,  in  such 
cases,  the  law  makes  the  delivery  to  tlie 
carrier  a  delivery  to  the  consignee,  though 
a  factor;  and  the  appellee's  counsel  en- 
deavor to  bring  the  appellee  within  the 
operation  c^f  this  rule  as  laid  down  in  Bai- 
ley and  others  vs.  Hudson  River  Railroad, 
-1!)  N.  v.,  70,  and  Straus  vs.  Wessel,  30 
Ohio  State  Rep.,  211.  But  those  cases  are 
not  analogous  to  the  present  one.  In 
Bailey's  Case  it  was  decided  that  title  had 
passed.  The  court  said  that  the  plaintiffs 
in  that  case  "occupied  the  legal  position 
of  vendees  after  having  paid  the  purchase 
money  and  received  delivery  uf  the 
goods."  It  is  true,  the  court  says,  in  ad- 
dition, that  it  is  not  necessary  to  hold  in 
that  case  that  the  plaintiffs  occupied  the 
position  of  vendees  strictly;  but  still  the 
decision  is  wholly  based  on  the  ground 
that  "the  actual  agreement  and  transac- 
tion proved  by  two  members  of  the  firm, 
and  uncontradicted,  i)revailed."  It  was 
because  of  the  agreement  expressly  proved 
that  title  was  held  to  have  passed  to  the 
consignee  on  delivery  to  the  carrier,  and 
in  that  way  the  shipper's  right  to  change 
ctinsignment  and  destination  was  lost. 
The  court  say  in  that  case,  the  goods 
were  not  sold  outright  to  the  consignee  at 
specihed  price,  but  they  were  by  agree- 
ment sent  to  him  for  sale,  and  that  the 
proceeds  should  be  aiiplied  to  the  payment 
of  tlie  debt ;  creating  thereby  the  quasi  re- 
lation of  trustee,  to  whom,  for  the  pur- 
poses of    the  trust,  the  title  passed.     In 


Straus  vs.  Wessel,  30  Ohio  Slate,  211, 
the  advances  had  been  made  on  the  partic- 
ular lot  of  pork  to  be  shipped,  which,  by 
express  contract,  was  shijjped  to  pay  the 
indebtedness;  and  it  was  held,  that  under 
these  circumstances,  the  delivrr.y  to  the 
carrier  was  a  delivery  to  the  consignee, 
who,  the  court  say,  in  sucli  case,  is  in  the 
'position  of  purchaser,  having  paid  for  the 
I  goods. 

If   the   present  case   by  the  proof,  meas- 
ured up  in  its  facts   to   these   last   consid- 
ered cases   we  should    think   the   delivei'y 
complete   so   as    to   pass   title   unless  the 
act  of  ls7li  interposes  an    insuperal)le  l)ar- 
rier  to  such   a  view,  which  the   necessities 
of  this  case   do  not  require  us  to  consider. 
!  According  to  the  facts  of  the  case,  which 
are   undisputed,    we   think   it   very    clear 
that   there  was   no   intention  in  the  orig- 
inal  shipment    to  pass  the  title  out  of  the 
'  shipper  ,  which.   Judge    Church    says,    in 
Bailey's   Case,   already   considered,  is    the 
true   test   to   l)e   ajiplied.     There  was  cer- 
tainly no  contract  that  the  flour  should  be 
shipped   to   pay  the   margins  or  advances 
on    account   of   the  goods  still  in  Corner's 
I  hands  and  unsold.    The  flour  was  snipped 
'  without  order  from  Corner  &  Co.     Thelet- 
ter  advising  Corner   of  the   shipment  and 
naming   the  price  at  which  he  was  to  sell, 
bears  evidence  of  its  being  an  unsuggested 
shipment,  and  that  Corner  had  been  writ- 
ing despon.lingl.v  of  Hour   prosiiects.     Not 
a  word    was   said    in    the   letteral)out  de- 
signing  that   shipment  to  pay  former  ad- 
1  vances;  and  we  are  warranted  in  suppos- 
ing he   did  not  know  that  the  margins  on 
I  the  flour  still  in  his  factor's  hands  were  ex- 
i  hausted  ;  for  it  does   not  appear  that  Cor- 
:  ner  &  Co.  ever   informed    him,  until  he  did 
so  by  the   letter  of  the  24th  of  January,  at 
which  time  the  flour    was   on    its    way  to 
Baltimore,  and  could  not  be  received  until 
some  da.vs  afterwards.     In  fact,  the  prr)of 
shows  that  Merlon  thought   a   considera- 
ble  balance  was   due  him   from  Corner  & 
j  Co.    on    the   previous   shipments.     Ah    al- 
'  read.v  stated,  when   the  flour  was  shipiied 
to    Corner    &    Co.,  a  draft    for   $'>{)i)   was 
:  drawn    and    put  in  bank  for  transmission 
:  to   Baltimore  for   presfntation  to  ('orner 
1&  Co.,  but   it   also   appears  it  was  subse- 
(piently  withdrawn   and    was  never  sent, 
because    Merlon      had  received    an    order 
from   C.    Rnhl  &:  Son   for   flour,  and  deter- 
mined  to   change   the    consignment,   and 
send    this   tlour  to  Ruhl  &  Son   instead    of 
to   Corner   &  Co.     The    Chicago   railroad 
agent    was   telegraphed  by  the  .viijima/io- 
I  lis    agent  to  hold  the  flour  for  this  cliange 
to  be  made  Itefore   C.)rner  &  Co.  sent  their 
letter   of   the   24th  of  January,  suggesting 
there  was  an   exhaustion  of  margins,  and 
if  any  Hour   should    he  shipped,  tliat  it  t)e 
shipped  without  draft.     It  is   clear,  there 
fore,  there  was  no  mutual  assent  between 
.Merlon  and  Corner  «&  Co.  to    the   flour   be- 
ing sent  by  Merlon  to  Corner  &  Co.  to  iiay 
for   previous   advances   on  former  orilers. 
Without   such     assent,     of    course    there 
was    no     contract.       Unfortunately,    the 
carding   of  the  car,  by  the  neglect  of   the 
railroad   or   of    Merion,  was  not  changed, 
and  the  flour  came  thi-ough  to  Baltimore, 
and    was   delivered    to   Corner  &  Co.,  and 
this  complication   has  produced    all    the 


RUHL  V.  COKNEU. 


671 


trouble.  If  the  fluur  whh  Morion'B  when 
CoruiT  received  it,  of  coin-He  (Vomer's  lienH 
for  previoiiH  iiilvniices  would  at  once  nt- 
tacli,  and  Merion  would  have  to  pay 
them  to  releaHc  the  flour;  but  if,  on  the 
other  hand,  Merion  had,  while  the  Hour 
waHin  transitu  ami  at  IiIh  risk,  parteil  with 
the  title,  and  the  Hour  waH  no  lon;;er  IiIh, 
the  lieuH  of  Corner  &  Co.  would  not  and 
coulil  not  attach.  We  have  seen  that 
when  the  Hour  waw  Hliipped  it  wmh  went  to 
Corner  without  order,  and  the  carrier  whh 
Merion'H  ajjent  and  not  Ciirner's;  anil 
that  nothintr  afterwardH  occurred  to 
chaiiKe  the  relation  of  the  carrier  and 
nialie  it  the  a«ent  of  Corner  &  Co.  iH  clear; 
for  the  sale  to  Hiihl  ic  .Son  was  made  be- 
fore (,'oriier  &  Co.  had  ever  made  their 
propoHition  of  the  LMtli  of  .Januiiry.  Sup- 
poHe,  iiiHtead  of  the  Hour  beiiit;  received 
by  Cornel'  &  Co.,  it  had  been  received  by 
lUihl  &  Son.  could  Corner  &  Co.  have 
niiiintaine<l  replevin  or  trover  for  the 
tlonr?  It  certjiinly  could  not  lie  contend- 
ed, upon  the  proof  that  the.v  could.  Il'not, 
then  Corner  &  Co.  had  no  title,  iuid  Itnlil 
&  .Son  hacl  acipiired  title  and  the  ri^ht  to 
Hue  (,'orner  &  Co.  If  Corner  <Sc  Co.  have 
been  niiwled  to  their  injury,  they  must 
look  elsewhere  for  redress.  What  the  law 
or  c()uit.v  would  do,  if  the  controversy 
woH  between  Merion  and  Corner  &  Co., 
must  not  l)e  considered  todivert  the  mind 
from  the  rights  of  Huhl  »t  Son. 

The  court  below  erred  in  trrnntinj;  the 
defendant's  prayer.  It  is  entirelj'  at  vari- 
ance with  the  law  of  the  case,  as  we  have 
declared  it.  The  first  prayer  of  the  plain- 
tiff wascorrect  in  principle,  but  it  omitted 
some  of  the  facts  necessary  for  thejur.y 
to  find.  It  oiiKht  to  have  submitted  to 
the  jury  to  find  the  fact,  that  tlie  oriiiinal 
shipment  to  the  defendant  was  without 
Ills  order,  and  was  sent  without  bill  of 
huliuK  and  actual  draft  on  Corner  &  Co., 
and  that  before  Corner  &  Co.  received  the 
flour  from  the  carrier,  the  sale  was  made 
to  Kuhl  it  .Son.  When  these  elementH  are 
incorporated  in  the  prayer.it  will  lierisrht. 
The  second  prayer  was  correctly  refused, 
for  it  submits  u   question    which,   under 


our  view,  the  jury  hod  nothing  todo  with, 
inasmuch  as  the  factor's  authority  wa» 
revoked  by  the  sale  to  Kuhl  &  Son.  It 
was  unuPcesHary.  The  third  prayer  waH 
correctly  .-r-Iused,  forit  clnirnM  as  the  meaH- 
ure  of  (lamaKCH  that  which  bebrnKS  to  the 
action  of  trover,  and  not  to  the  form  of 
action  adopted  liy  the  plaintiffs.  In  the 
action  of  assumpsit,  in  the  alisence  of 
proof  of  actual  sale  of  the  (fooiN  to  the 
defendant  the  plaintiff  can  only  recover 
for  the  moiwy  had  and  received  from  the 
sale  of  the  Hour  to  the  use  of  the  plaintirf. 
The  prayer  was  therefore  InconslHtent 
with  the  form  of  ocllon. 

'I'he  iiueslion  raistMl  by  the  first  Idll  o( 
exception  needs  no  discuMsion.  The  proof 
tenilered  was  wholly  Immaterial,  and 
witlwjut  bearing  upon  the  issue.  'I'he  pre- 
vious admission  of  irrelevant  testimony, 
without  objection,  did  not  render  its  re- 
buttal competent.  There  wns,  therefore, 
no  error  in  its  rejection. 

The  objection  which  has  been  raised  by 
the  appelle(>'s  counsel,  that  the  llrst  and 
second  bills  of  e.xceptionnrenotsiilllclently 
connected,  l>y  apt  InnKuaKe,  to  entitle  the 
court  to  look  at  the  evidence  in  the  firat 
bill  of  exception,  for  the  purpose  of  deter- 
mining; upon  the  correctness  ni  the  court's 
rulings  upon  tlie  instructions,  cannot  bo 
maintained.  .Ml  the  evidence  was  In,  and 
the  prayers  wore  not  Intemled  to  be  mere 
abstractions.  They  were  offered  with  ref- 
erence to  the  proof,  as  their  lorin  shows. 
The  most  appropriate  laiiKuatre  Is  not 
used  for  connecting  tlie  two  bills  of  excep- 
tion, but  we  regard  it  asentirely  siiHlclent. 
The  case  is  simibir  to  and  covered  by  Hal- 
tiinore  and  Ohio  l!ailroa<l  Company  vs. 
State,  usi'  of  Fryer,  .'iO  .Md.,  -17.  The  Inn- 
jruaf^e  used  is.  "all  the  testimony  beiiic  In. 
the  plaintiffs  offered  the  fcllowlnR 
prayers."  Heference  to  the  testimony  re- 
cited is  manifestly  made.  It  is  eipiivalent 
to  sayiuK  "  tlicre  bein«  no  othi-r  testimo- 
ny," or  "this  being  all  the  testimony." 
The  intention  is  too  plain  to  he  dlsrc- 
ijarded. 

.Judgment  reversed,  and  new  trial 
awarded. 


RUI'I.KV  V.  DAOCKIT. 


673 


RUPLEY  et  al.  v.  DAGGETT. 

(74  111.  351.) 

Supreme  Court  of  Illinois.    Sept.  Term,  18T4. 

Replevin  LroiiRlit  l)y  John  F.  DdKRett 
OKJiinHt  Aliriiiu  Itupley  and  .Iiiciil)  liupley 
ti)  recover  a  mare  wliicli  tlie  defenilanl.s 
clainuMl  tliey  liail  b(>ii»;lit  of  the  pluiatiff. 
At  the  first  con ver.siition  about  tlie  mare, 
Hiiplcy  asked  tlie  piice.  the  plaintiff  swear- 
ing' that  he  icplled  fKif..  while  the  defend- 
ant testilied  tliat  he  said  *(;.'i.  Inthescc- 
ond  conversation  Itupley  Hays  lio  told 
DaKKett  that,  if  the  mart!  whh  as  repre- 
senti'd,  they  would  f^ive  ¥(i."i,  and  DaKKett 
said  he  would  take  liim  down  next  morn- 
ing to  see  her.  Dajmett  testified  tlial 
lUipleysaid  toliim."l)id  I  understand  yon 
Hi.\ty-live'.'"  and  tha;  he  supjiosed  Itupley 
referred  to  the  fraction  of  tlie  $101),  and 
meant  $!(!.')  as  named  at  the  previous  in- 
terview. He  ansvvered,  "Yes,  sixty-live.  " 
Hotli  parties  theu  supposed  tlie  jiriee  was 
ti.xed,  Knpley  supposing  it  was  .IKir),  and 
ItaKnett  KupiiosiiiK  it  was  $]ii').  The  iie.xt 
day  Hupley  siiw  tlie  mare,  and  took  lior 
home.  Jiidguient  tor  plaintiff,  and  de- 
fendants appealed. 

lA'llowsA:  Leonard,  for  appellants.  Hill 
&  Diliell,  for  appellee. 

St'OTT,  .1.     It  is  very  clear,  from  the  evi- 
dence in  this  case.  tlier(>  was  no  sale  of  the 
property    niiderstaiidia;;ly    made.     Appel- 
lee supposed  he  was  sellint;  for  .^Uir).  and  it 
may  lie  appellant   was  eijually   honest   in 
the  belief  tliat  ho  was  buyiiiK  "t  the    price 
of  .UI'm.     There  is,  however,  some  evidence 
tendliiK    to   show    that  apiiellant    Ifnpley  i 
did  not  act    with   ontiro  y,ood    faith.     Ho  ' 
was  told,    before   he    removed    the    mare 
frtim  appellee's  farm,  there   must  be  some 
mistake   as  to  the  price  he  was  to  pay  for 
her.     There  is  no  dispute  lliis  information 
was  given  to  him.     Ho  insisted,  however,  ' 
the  [irico  was  $6"j,  and   expressed  his  belief 
he  would   Ueei)  her  if  there  was  a  mistake.  I 
On  his  way  home   with   the   mare    in    his' 

LAW  SALES— 43 


[losBession,  he  met  appellant,  bnt  never 
intimated  to  him  he  had  been  tidd  there 
iiii«ht  be  a  misun<letHtaiidlnK  us  to  the 
price  he  was  to  pay  lor  her.  TIiIh  he 
ouKht  to  have  done.  HO  that.  If  there  had 
been  a  misiinderstaiidbit;  between  tlierii, 
it  eonld  be  corrected  at  oni.c  ]f  the  price 
was  to  be  ?l(;."j,  he  had  niver  agreed  to 
pay  that  huiii,  and  was  iinib-r  no  sort  of 
obli);ation  to  keep  the  property  at  tlint 
price.  It  was  his  pri\lle;;e  (o  return  It. 
On  the  contrary,  appell-e  had  never 
agreed  to  sell  f.ir  ?r..'..  and  could  not  bo 
compelled  to  part  with  his  proiierty  for  a 
less  sum  than  he  chose  to  ask.  It  is  ac- 
cording to  natural  justii'c.  where  there  Im 
a  mutual  mistake  in  n-;;,ird  to  the  price  of 
an  article  of  jiroperty,  there  is  no  sale, 
and  neither  party  is  liounil.  There  has 
been  no  meeting  of  the  iiiinds  of  the  con- 
tracting parties,  and  hence  there  can  be 
luj  sale.  This  princi[>le  is  so  elementary 
it  needs  no  eitatimi  of  authorities  In  its 
sujiport.  .\ny  other  rule  would  work  In- 
justice and  might  compel  n  person  to  part 
with  his  property  without  his  consent,  or 
to  take  and  pay  for  property  at  a  price  he 
had  never  contracted  to  pay. 

There  was  no  error  in  refusing  Instruc- 
tions asked  by  appellants.  Therourt  was 
asked  to  lidl  the  jury  if  they  lielieved.froni 
the  evidence,  ai'pi  llee  had  "sworn  wlll- 
fnlly  and  corruptly  false  in  any  material 
portion  of  his  testimony,  then  they  are  nt 
litierty  to  disregard  his  entire  ti  slimony. 
except  so  far  as  it  may  l>e  corroborated 
by  other  evidence  In  the  case."  '"onced- 
ing  this  instruction  states  a  correct  ab- 
stract principle  of  l,iw,  tliere  was  no  ne- 
cessity for  giving  it  under  t!ie  facts  proven 
in  this  case.  The  verdict  was  right,  and 
appellants  were  not  prejudli'ed  by  the 
refusal  of  the  court  to  give  it. 

.Ml  that  was  pertinent  to  the  Issues  in 
the  other  refused  instrnetions  was  con- 
tained ill  others  that  were  given,  ond 
there  was  no  necessity  for  repeating  It. 

No  material  error  appearing  in  the  rec- 
ord, the  judgment  mnsl  be  allirmcd. 

.ludgnienc  atllrmed. 


.>.  I 


SAFFOIil)  V.  McDOXOrCH. 


675 


SAFKORD  et  ul.  v.  McUONOUUU. 

d'iO  Mass.  2'J(i.i 

riupreme  Judiciul  Court  of  MuBsachusetts.     Suf- 
folk.    May  6,  ItsiG. 

T.  H.  SweetHer  and  B.  F.  HnyeH,  for 
plaintiffrf.     S.  A.  U.  Abbott,  for  (Ic-feiidiiiit. 

MOUTON.  J.  TliiH  is  nn  actliiii  of  con- 
tract to  recover  the  price  of  a  i|iiaiitity  of 
Icatli'T,  C'XCcediiiK  lil'ty  i|i>llar.s  in  value, 
alleged  to  lune  lieeii  sold  l)y  tlio  plaintiffs' 
to  the  defendant.  There  w.iw  no  ineii-.D- 
randum  in  writing  of  theconti'act,  and  the 
purchaHcrdid  noty;lve  atrvthinj;'  la  earucHl 
to    bind    the    barnnin  or  in  pai't  pay inent. 

It  appeared  on  fhe  trial  that  the  defend- 
ant on  -May  17,  IsTl',  went  to  th"  plain- 
tiffs' Ktore  and  auroed  to  purchase  the 
lenthi'r  at  the  price  nanieil,  to  he  paid 
for  l)y  a  satisfactory  note. 

On  the  thirty-lirst  <lay  o!  the  Hnaie 
inoiitli,  he  a;;ain  went  to  the  plaintiffH' 
Htorc,  exanuned  the  leather,  had  it 
weifilieil,  marked  with  the  initials  of  his 
name,  and  |)iled  tip  by  itself,  to  be  taken 
away  by  him  upon  ;;ivinK  a  satisfactory 
note  for  the  pi  ice.  or  the  payment  of  the 
price  in  money,  but  not  otherwise.  He 
never  complied  with  the  terms  of  the 
ajj;reem"nt.  The  i)laintiffM  refused  to  al- 
low him  to  take  the  leather  from  their 
Mtore  without  such  compliance,  claiming;  a 
lien  upon  it  for  the  price  due.  U  remained 
In  their  store  till  November',),  ls7i>,  when 
it  was  burnt  with  the  store.  Fpon  this 
evidence  the  presiding'  justice  of  the  supe- 
rior court  ruled  that  the  leather  had  not 
been  so  accepted  and  received  by  the  de- 
fendant as  ti>  take  the  contract  out  of 
the  statute  of  frauds,  and  the  plaintiff  ex- 
cepted to  such  ruling. 

It  should  be  kept  in  mind  rlint  the  ques- 
tion is  not  whether,  if  a  valid  contract  of 
sale  upon  the  terms  above  named  had 
been  proved,  the  title  in  the  property 
would  have  passed  to  the  defendant  so 
tliat  it  wonid  be  at  his  risk.  In  such  a 
case,  the  title  would  paps  to  the  pur- 
chaser unless  there  was  some  agreement 
to  the  contrary,  but  the  vendor  woidd 
have  a  lien  f<<r  the  i)rice,  and  could  retain 
|)ossession  until  its  payment.  Ilaskins  v.  I 
Warren,  ll.'i  Mass.,')14.  Morse  v.  .Sherman, 
lot)  Mass.  4;!(l.  Townsend  v.  Ilar)»raves, 
118  Mass. 325.    But  thequestion  Is  whotlierj 


the  defendant  had  acce|iled  and  received 
the  Koods,  HO  ns  to  take  the  case  out  of 
the  statute  of  framls,  ami  thus  complete 
and  make  valid  thcoral  contrail  relied  on. 
rnless  there  was  such  acce|)tance  and 
receipt,  there  was  no  valid  contract  by 
virtue  of  which  the  title  to  the  >;ooiIh 
would  pass  to  the  defendant.  To  constl- 
tiite  this,  there  UHist  be  a  delivery  by  the 
seller,  and  Home  uneiinivocal  acts  of  inpii- 
erhhip  or  control  of  the  (.'ooiIh  on  the 
pait  of  the  purchaser.  Kiduht  v.  Mann. 
lis  .Mass.  U:!,  and  cases  citnl. 

In  till'  caKe  at  bar.  there  was  no  actual 
acci'ptance  and  rei-cipt  of  the  ^o^ids  by  the 
defendant.  They  w<-re  never  In  IiIh  poH- 
session  or  control,  but  ririiained  in  the 
possession  and  contnd  of  the  idalntlffs, 
who  refused  to  allow  him  to  take  tlicni, 
claiming  a  lien  for  the  price.  If  they  had 
and  asserted  a  lien  as  vendors,  this  Ih  in- 
consistent with  the  delivery  of  posHeHsioii 
and  control,  necessary  to  constitute  an 
acceptance  anil  receipt  by  the  vendee.  In 
Haldey  v.  Parker,  L'  W.ic  V.  :f7,  44,  Molroyd, 
.)..  says;  "Upon  u  hhIu  of  specific  kooiIh 
for  a  specific  price,  by  parlin;;  with  the 
possession  the  seller  parts  with  hiH  lien. 
The  statute  contemplates  such  a  parting 
with  tlie  possession,  and  therefore,  uh 
lor!;r  as  the  seller  prcHerven  his  contrrd 
over  the  kooiIs,  so  as  to  retain  his  lien, 
he  prevents  the  vendee  from  acceptini; 
and  receiving  them  as  his  own  within  the 
meanini;  of  the  statute."  Benjamin  on 
.Sales.  (.\n).  edl  l."d,  and  cases  cited. 
lii'owiie  on  St.  ol  Frauds,  J  :tl7. 

It  is  tr\ie  there  may  be  cases  in  wlilch 
the  h;ooiIs  remain  in  the  possession  of  the 
vendor,  and  yet  may  have  been  accepted 
and  received  by  the  vendee.  But  in  such 
cases  the  vendor  holds  possession  of  the 
jioods,  not  by  virtue  of  his  lien  as  vendor. 
I)ut  under  some  new  contract  by  which 
the  relations  of  the  partien  are  changed. 
•  'nsack  V.  Hobinson.  1  B.  &  S.  I'l'J),  .■(1)8. 
Castle  V.  Sworder.  ti  H.  &  N.  828.  Dodaley 
V.  Varley,  12  A.  &  K.  Ii.t2. 

In  the  case  at  bar,  the  vendors  refuaed 
to  permit  the  vendee  to  take  possession  or 
control  of  tlieKoods.  but  claimed  and  na- 
serted  their  lien  as  vendors  for  the  price. 
We  are  Hierefore  of  opinion  that  the  rul- 
xna  of  the  superit)r  court  was  correct. 

Exceptions  overruled. 

KNDICOTT  and  I.ORD,  J  J.,  absent. 


I 


SALTUS  V.  EVEIIETT. 


677 


SALTUS  et  al.  v.  EVERETT. 

(20  Wend.  267.) 

Court  of  Errors  of  New  York.    Dec.  1838. 

Error  from  the  supremo  court.  • 
Everett  Urounlit  nii  action  of  trover  in 
the  Hiipcrlor  court  of  linv  of  the  city  of 
,\c\v-Y()rU  a^uiuMt  Muhhth.  SalluH,  for  u 
quiuitity  of  leu<!.  In  Au;;ust,  ISL'.'i.  liriclKe 
&  VoHe,  luerchantH  al  New-Orh-aiis, 
shipped  17!)  piKH  of  lead  on  lioai-il  tlie  UriK 
IJove,  ot  whicli  Wllliain  ("ollin.s  waH  iiiaH- 
ter,  consi;:iieil  to  .MesHrH.  TiiflK,  ICieieth.  & 
IJ;irrell,  of  .New- V(irl<,  on  account  and  riyk 
of  OtiH  ICvcrett,  the  plahitilt,  to  whom 
they  were  rcferreil  for  instructions.  The 
Dove  put  into  Nctrfolk'in  diHtress.  and 
part  of  tlie  lead  was  sold  to  pay  e.\pen«es, 
and  the  residue  was  transferred  in  Decem- 
ber, 1.S2.'),  I)y  an  ;i(jrent  of  ('apt.  Collins,  to 
the  schooner  Dusty  Miller,  Captain  .lohn- 
Hou,  wlio  sinned  a  liill  of  lading',  acUnowl- 
edKinj?  tiic  lead  to  have  been  shipped  by 
F.  M.,  uKent  for  William  Collins,  and 
promising  to  deliver  the  same  in  New- 
York,  to  order,  on  payment  of  freight. 
The  Dusty  Miller  met  with  a  disaster  on 
her  voyage  to  Xew-York,  and  on  her  ar- 
rival there,  the  lead,  by  the  order  of  ('apt. 
Collins,  was  delivered  to  the  hrm  of  Collin 
&  Cartwrijjcht,  who  paid  the  freijiht,  and 
$7-'.n7,  the  averajic  contribution,  eharKed 
upon  the  lead,  for  the  loss  occasioMe(l  by 
the  disaster  to  the  Dusty  Miller.  On  tlie 
'.ith  March,  ISl.'!!,  Collin  &  Cart  Wright  sold 
the  lead  to  the  Messrs.  .Saltus,  the  defend- 
ants, for  «."j4l'.74,  and  received  payment. 
Tlietreisht  of  the  lead  from  .New-Orleans 
to  New-Vork,  amounted  to.'J14.72.  Everett 
broiijrht  an  uction  against  Collin  .Si  Cart- 
wri!j;iit,  to  recover  the  value  of  the  lead, 
but  was  nonsuited,  in  failinf;  to  prove 
that  before  suit  lrouKht,he  offered  to  pay 
the  freiiiht,  average  and  charges  to  which 
the  lead  was  liable,  and  which  had  been 
advanced  by  .Messrs.  Collin  &  Cartwri«ht, 
and  this  court,  on  application,  refused  to 
set  aside  the  nonsuit.  (See  (>  Wendell, (iUo.) 
In  October.  iNIil,  the  plaintiff  den.anded 
the  Icail  of  the  Messrs.  .Saltus,  and  offered 
to  pay  any  la  w  fill  demands  they  had  on  the 
same;  to  which  they  answereil.  they 
would  have  no  further  communication  on 
the  subject.  It  was  proved  that  in  March, 
ISL'C,  one  of  the  linn  of  Tufts,  Eveleth,  i^i 
Ituirell  demanded  of  the  Messrs.  Saltus, 
the  lead,  or  its  value,  and  receiveil  for  an- 
swer, that  they  had  bought  the  leail,  ami 
paid  for  it,  and  would  not  do  anythiriK 
about  it.  Upon  this  evidence  the  jilain- 
tiffwasn^ain  nonsuited.  Wher-.Mii)on  ho 
sueil  out  a  writ  of  error,  removiiifi  the 
record  into  the  supreme  court,  where  the 
judgment  of  the  superior  court  was  re- 
versed. See  opinion  delivered  in  the  su- 
preme court.  (!.")  Wendell,  •17.'i,  ct  sei).) 
The  defendants  then  removed  the  record 
into  this  court,  where  the  cause  was  ar- 
Kued  by 

T.  T.  Payne,  for  plaintiffs  in  error.  T. 
Sedawiek,".Ir.,  and  S.  I*.  Stai)les,  for  de- 
fen(Iunt  iu  error. 

By  the  CHANCICl.EOH.  The  plaintiffs 
in  error  were  not  entitled  to  the  goods  in 
question  on  the  ground,  that  they  were  the 


[  purchasers  thereor  without  notice  of  the 
rights  of  the  real  owner;  they  were  In  the 
same  situation  in  this  respect  us  every 
other  purchaser  of  goods   from   n    person 

I  who  hail  no  authority  to  hi-II.  If  the 
owner  of  the  goods  hiitj  caused  the  bill  of 
lading  to  be  made  out  in  the  nnmo  of  Col- 
lids.sd  as  give  him  o  jirinia  facie  right  to  tho 
gooils  as  owner,  or  coiiHigntH?  for  his  own 
benelit,  Ji  bona  fide  purchaser  might  liavo 
been  entitled  to  prutectlon.  The  principle 
adopted  in  the  case  of  .Mi)wrey  v.  Walsh, 
(S  ' 'o wen,  L':{S),  might  be  applicaole  tosurh 
a  case;  but  here  the  change  of  the  lilll  of 
hilling  itself  was  u  fraudulent  act  on  the 
[i.irt  of  the  iiiMster  of  the  vessel,  or  liis 
agent,  and  could  not  deteat  the  right  «if 
the  owner  ot  the  goods  svho  had  not  au- 
thorized any  such  change.  'I'lie  hill  of  lad- 
ing is,  by  the  custom  of  inerchantM,  trans- 
ferable, so  as  to  vest  in  the  assignee  tho 
title  to  the  goods  which  the  assignor  lind 
in  tliem  ;  but  if  a  person  without  author- 
ity from  me  ships  my  goods  jiiid  takes  u 
bill  of  lading  in  hi-i  own  name,  lie  cannot, 
liyassigniig  that  bill  of  lading  to  another, 
ilivest  my  title  to  the  property.  If  by  tho 
perils  of  the  sea,  or  otiierwise,  the  master 
of  the  Dove  was  unable  to  continue  the 
voyage,  and  he  was  obliged  to  send  on  the 
cargo  by  another  vessel,  he  liad  no  right 
to  change  the  consignee  of  the  iioods;  and 
if  lie  wished  to  retain  a  lien  upon  the 
goods  for  the  freight  pro  rata  itineris,  he 
should  have  done  sn  by  n  special  clause 
in  the  new  bill  of  lading.  In  this  case  tlie 
umiuthorized  sale  of  the  goods  in  the  port 
of  .New-York,  liy  the  master  of  the  Dove, 
was  probably  such  an  act  as  would  now 
be  a  felony,  under  the  provisions  of  the 
Uevised  Statutes  proliil.iting  carriers  of 
goods,  delivered  tothein  to  lie  transported 
for  hire,  from  embezzling  the  goods  orcon- 
vertiiig  the  same  to  their  own  use:  and 
even  at  the  time  when  this  tran.saction 
tool;  [dace,  no  rights  cnuld  be  acquired  by 
thill)  parties,  as  against  the  owner  of  the 
goods,  liysuch  a  fraudulent  act  ot  the  car- 
rier to  whom  they  were  entrusted  for 
carriage  or  transportation  mcn-ly. 

The  question  does  not  arise  on  this  writ 
of  error  whether  tlip  Messrs.  Saltus  by  the 
pui'idiase  were  sulistltiitcd    in    the  place  o( 

Collin  &  Cnrtwriglit  as  to  the  Ilea  upon 
the  goods  for  the  freight  iiald  by  tlieni 
to  the  master  ot  the  Dusty  .Miller.  II  there 
had  nor  been  an  actual  conversion  of  the 
goods  liefore  the  coininencenient  of  the 
suit,  the  question  would  arise  whether 
there  ever  was  a  lien  which  the  pur- 
chasers from  Cntlin  &  Cartwright  cnuld 
claim  the  benelit  of;  and,  if  such  Hen  ex- 
isted, whether  it  had  not  been  waived  by 
putting  their  cinlni  to  retain  the  goods 
upon  other  grounds.  It  appears,  how- 
ever, by  the  evidence,  that  the  plainlifTs  in 
error  hiid  actually  converted  the  goods, 
bv  selling  them  on  the  d;;y  of  their  pur- 
chase; and  if  they  once  had  a  lien  which 
wouhl  have  reliutted  the  presumption  of  n 
conversion,  from  the  meiv  fact  of   n-fusinK 

I  to  deliver  on  demand,  when  the  amount 
of  the  lien  WHS  not  tendered    or   offered  to 

!  be  |iaid,  a  tender  aftir  they  had  put  It  out 

'  of  their  power  to    receive   the    money  and 

I  deliver  the  goods,  by  an  actual  sale,  would 
linvc  been   a   useless  ceremony,  and    was 


678 


SALTUS  V.  EVERETT. 


not  necessary  to  enable  the  owner  of  the  ' 
prcjods  to  recover  hi  nn  action  of  trover. 
In  HiK'h  a  ca.se,  if  there  was  a  valid  lieu  in 
favor  of  the  defemiarits  liefore  the  conver- 
sion, tliey  would  be  entitled  to  be  re- 
couped in  the  dnmase,  to  the  extent  of 
such  lien  :  but  they  coulil  not  deleat  the 
plaintiffs'  action  altogether. 

The  l)ill  of  ladins  signed  by  Collins  at 
New-Orleans  was  only  [)riiua  facie  evidence 
that  the  consignees  were  the  owners  of 
the  pro|ierty,  and  the  letter  of  Bridge  & 
Vose,  the  shippers,  which  was  sent  to  the 
consignees  with  the  bill  of  lading,  was 
sufficient  to  rebut  the  [jresumption  and  to 
show  that  the  [iroperty  really  belonged 
to  Otis  Everett  of  Roston,  in  whose  name 
the  suit  was  brought.  Hcsides,  oue  of  the 
consignees  was  examined  as  a  witness, 
and  iH'oved  that  Everett  and  not  the  con- 
signees at  New-York,  was  the  real  owner 
of  the  goods.  I  have  no  doubt,  therefore, 
that  the  judgment  of  the  supreme  court 
was  i-orrect,  and  that  it  ought  to  be 
affirmed. 

By  Senator  VERPL.\N("K.  This  cause, 
though  of  small  magnitude  as  to  the 
amount  of  property  in  question,  has  lieen 
contested  in  various  forms  through  all  the 
courts  to  this  tribunal  of  last  resort. 

The  spirit  of  contentious  litigation 
ought  to  find  little  favor  here;  yet  in  this 
instance,  I  think,  the  parties  have  de- 
served well  of  the  public,  because  the  main 
question  in  thecase  Is  of  great  importance, 
and  must  frequently  arise  in  a  commercial 
community.  It  ought,  therefore,  to  be 
distinctl.v  settled  on  principles  of  general 
application.  That  those  principles  are 
not  very  clearly  settled  in  our  state,  we 
need  no  higher  evidence  than  the  manner 
in  which  the  cause  now  comes  before  us. 
Thesui)remecourt  havereversed  the  unan- 
imous decision  of  the  superior  court  of 
law  of  the  city  of  New-York,  and  on  the 
broad  principles  governing  the  questions 
which  we  are  now  to  decide,  there  is  a 
direct  contrariet.v  between  the  opinions  of 
our  highest  court  of  common  law  and 
those  of  our  most  eminent  commercial 
tribunal,  as  delivered  by  their  chief  jus- 
tice, vvho  was  formerly  chancellor  of  this 
state. 

The  main  question  depends  upon  and 
inv<»lves  the  general  rule  that  ought  to 
govern,  bet  ween  the  conflicting  rights  of 
bona  tide  purchasers  of  personal  property, 
bought  without  notice  of  any  opposing 
claim,  and  those  of  the  original  owner, 
divested  of  the  possession  or  control  of  his 
property  by  accident,  mistake,  fraud,  or 
misplaced  confidence.  The  original  owner 
now  claims  his  lead  against  purchasers 
who  bought  for  a  fair  price,  in  the  usual  ' 
course  of  trade,  from  jiersons  holding  the 
usual  evidence  (»f  such  property,  (a  bill  of 
lading  endorsed  to  them,)  and  in  actual 
possession  of  the  goods.  Of  these  two  in- 
nocent parties,  which  of  the  two  is  to 
bear  the  loss  arising  from  the  wi'ong  do- 
ing of  the  third?  [ 

The  universal  and  fundamental  princi- 
ple of  our  law  of  pc'sonal  property,  is, 
that  nt)  man  can  ne  divested  of  his  prop- j 
erty  without  his  own  consent;  and,  con-' 
sequently,  that  even  the  honest  purchaser 


under  a  defective  title  ca.nnot  hold  against 
the  true  proprietor.  That  "no  one  can 
transfer  to  jinother  a  better  title  than  he 
has  himself;"  is  a  maxim,  says  Chancellor 
Kent,  "(ilike  of  the  .■omnion  and  the  civil 
law,  and  a  sale,  ex  vi  termini,  imports 
iiothing  more  than  that  the  bona  hde  pur- 
chaser succeeds  to  the  rights  of  the  ven- 
dor." The  only  exception  to  this  rule  in 
the  ancient  English  jurisprudence  was, 
that  of  sales  in  markets  overt,  a  custom 
which  has  not  been  introduced  among  us. 
"It  has  lieen  frequently  held  in  this  coun- 
try that  the  English  law  of  markets  overt 
had  not  been  adopted,  and  consequently 
as  a  getieral  rule,  the  title  of  the  true 
owner  cannot  be  lost  without  his  con- 
'-ent."  r2  Kent's  Comni.  324,  and  cases 
there  cited.) 

To  whatever  and  however  numerous  es- 
ce[)tions  this  rule  of  our  law  may  be  sub- 
ject, it  is  unqucstionahy  the  general  and 
regulating  principle,  modilied  only  liy  the 
absolute  necessify  or  the  obvious  policy 
of  human  affairs.  The  chief  justice  of  the 
superior  court  has  said,  in  his  o|)iuion  on 
this  case,  that  "it  must  be  conceded  that 
a  purchaser  for  a  fair  and  valuable  con- 
sideration, in  the  usual  course  of  trade, 
without  notice  of  any  conflicting  claim 
or  any  suspiciouscircumstances  to  a  v\  aken 
inquiry,  or  to  put  him  on  lii.s  guard,  will, 
as  a  general  rule,  be  protected  in  his  pur- 
chase, and  unaffected  by  any  latent  claim. 
But  there  are  exceptions  to  this  rule." 
Now,  1  cannot  agree  with  thelearned  chief 
justice  that  this  is  the  general  rule.  On 
the  contrary,  I  think  it  obvious  that  it  is 
hut  the  broad  statement  of  a  large  class 
ol  exceptions  to  the  operation  of  a  much 
aroregeneral  principle,  and  that  statement 
of  exceptions  is  subject  again  to  many 
limitations.  I  havestated  thegeneral  and 
governing  law;  let  us  now  see  what  are 
precisely  the  exceptions  to  it. 

The  first  and  most  remarkable  class  of 
these  exceptions  relates  to  money,  cash, 
liank  bills,  checks,  and  notes  payable  to 
the  bearer  or  transferable  by  delivery, 
and  in  short  whatever  comes  under  the 
general  notion  of  currt^ncy.  It  was  decid- 
ed by  Lord  Chief  Justice  Holt,  at  an  early 
period  of  our  commercial  law,  that  money 
and  bills  i)ayableto  hearer,  though  stolen, 
could  not  be  recovered  sifter  they  had 
passed  into  currency;  and  this  "by  rea- 
son of  the  course  of  trade  which  creates  a 
property  in  the  holder."  "They  i)nss  by 
delivery  only,  and  are  coiisiilered  as  cash, 
and  the  possession  always  carries  with  it 
the  property."  (Anon.,  1  Salk.  IL'6.)  A 
long  series  of  decisions,  beginning  with 
Millar  V.  Race,  (1  Burr.  •452.)  has  now  set- 
tled the  law,  that  possession  of  such 
paper  is  presumptive  proof  of  property, 
and  that  he  who  recei\ed  it  in  the  course 
of  trade  for  a  fair  consideration,  without 
any  reason  for  just  suspicion,  can  hold  it 
against  the  (rue  owner,  and  recover  on  it 
against  the  drawer,  maker,  and  other  par- 
ties, even  if  the  paper  had  been  stolen  from 
or  lost  by  the  former  holder;  such  lormer 
holder  retaining  all  hisoriginal  rightsonly 
against  the  thief  or  the  finder,  or  whoever 
received  the  p'aper  from  them  under  sus- 
picions circumstances.  These  decisions 
have  lieen  argue<l  upon  as   authorities  (at 


SALTUS  V.  EVEUETT. 


679 


IcHHt  in  tlie  way  of  analofi.v  t  both  at  Imr 
and  ill  opiiiioriH  of  tlip  coiirtH.  in  cnscs  iii- 
volviii;r  tlu;  sniuc  <jiit'Hti<jii  hh  to  kooiIh  or 
utliur  iiiovtilile  inopcrty.  Hence,  it  ivas 
Inferreil  that  jiooiIk  lioimlit  or  received  "  in 
til?  cuui-HU  of  IrucJe,  island  on  tlie  Hiiiiie 
footins:  witli  hank  iiotew  or  clieckH  ro  re- 
reiveil."  But  an  exaniiiiation  of  the  caueH 
will  hIiow  tluit  tlii«  part  of  tlie  law  of  ne- 
Ifotiahle  paper  rests  on  uroiindH  quite  pe- 
culiar to  itseli,  for  tlic  folio wiiiji  reaMiiiK: 
1.  The  protection  oi  the  liona  fide  holder 
of  reaper,  transferalile  liy  delivery,  extends 
even  to  cases  where  the  paper  has  been 
lost  or  Htoleii.  lint  it  has  l)een  often  de- 
cided that  loss  by  accident,  theft,  or  r(d)- 
bery.does  not  divest  the  titleof  the  owner 
of  lioods.  nor  nive  a  title  in  them  to  a  fair 
after  piirdiaser.  '2.  The  rule  is  jmt  by  all 
the  authorities  on  the  express  and  sepii- 
rate  Kronnd  of  the  necessity  of  sustaiiiiu'; 
the  credit  and  circulation  of  the  currency. 
Thus  Lord  t'hief  Justice  llardwicke:  "No 
<lispute  oimht  to  be  niaile  with  tlie  holder 
of  n  cash  note,  who  came  fairl.v  by  it.  for 
the  sake  of  currency,  to  which  discreditiiiu 
such  notes  woulil  be  a  Kreat  ilistiirbance.  " 
See,  too,  the  reasoniiif^  of  Lord  Mansfield, 
in  »\l  cases  on  this  head  decided  before 
him.  Thus,  says  he,  in  the  case  of  a  stolen 
Hole,  Peacock  v.  Uliodes,  ( l'  l)ou;i.  (!:{i; : ) 
"An  assignee  must  take  tlie  thiiiK  assigned, 
subject  to  all  thoe(jiiity  to  wliicli  the  oritJ- 
iiial  party  was  subject.  If  this  rule  was 
applied  to  bills,  it  would  stop  theii'  cur- 
rency." Similar  reasons  are  assigned  for 
the  same  decision  by  .American  jinli;es.  ;j. 
The  analogy  between  notes  and  movables 
or  poods,  is  expressly  denied  in  the  lend- 
ioK  I'ases  on  this  head.  Thus,  in  rnply  to 
an  arfiiimeiit  founded  on  that  siiuilarit.v, 
l>oril  Manstielil  answers,  (.Miller  v.  Kace, 
1  I'lirr.  4.')7  : 1  "The  whole  fallacy  of  tlie  ar- 
cuiiient  rests  upon  conipariii};  bank  notes 
t<i  what  they  do  not  resemble,  and  what 
they  oufilit  not  to  be  comiiared  to,  viz., 
Koods,  or  securities,  or  documents  for 
debts.  Now,  tliey  are  not  sjoods.  nor  se- 
curities, nor  similar  to  them;  they  are 
treated  as  cash  to  all  iiurposes,'  &c. 

Setting  wholly  aside,  then,  this  part  of 
the  law  as  to  cash,  l)aiik  n<jfes,  and  bills 
to  liearer,  as  founded  on  the  peculiar  ne- 
cessities of  curreiic.v  and  traile.  and  regu- 
lated by  rlecisions  and  iisa^res  peculiar  to 
itself,  what  rules  do  we  liiid  to  obtain  in 
other  instances  of  conllict  between  the 
ritfhts  of  ori;;iiial  owners  and  those  of  fair 
purchasers?  .After  a  careful  examination 
of  all  the  English  cases  and  those  of  this 
state,  that  have  been  cited  or  referred  to, 
1  come  to  this  H;eiieral  conclusion,  that 
the  title  of  propert.v  in  ttiinns  movable 
can  pass  from  the  owner  only  liy  his  own 
consent  and  voliinlary  act.  or  l)y  opera- 
tionof  law;  liut  that  the  honest  purchaser 
who  buys  for  a  valu.-ildi'  considt  ration,  in 
the  course  of  traile,  without  notice  of  any 
ailverse  claim,  or  any  circuii:staiices  which 
niiiiht  lead  a  prudent  man  to  suspect  such 
adverse  claim,  will  be  protected  in  his  title 
auaiiist  the  original  owner  in  those  cases, 
and  ill  those  oiil.v.  where  such  owner  has 
by  his  own  direct  voluntar.v  act  conferred 
upon  the  person  from  whom  the  liona 
tide  vendee  derives  title,  the  apfiarent 
right  of  property  as  owner,  or  of  disposal 


asanoppnt.     I  llnl    two   dlntlnct  cliissen 
of  cases  under  tliis  head,  and  no  more. 

I.  The  lirst  is.  when  the  owner,  with  the 
intention  of  sale,  has  in  any  way  parted 
with  theaclual  property  of  his  poods,  with 
his  own  consent,  thoiiph  iimler  such  rlr- 
ciimstances  of  fraud  or  error,  as  would 
make  that  consent  revocable,  rescind  the 
sale,  and  authorize  the  rei-over.v  of  tlie 
poods  as  apaiiist  such  vendee.  liut  It  the 
pr<u)erty  passes  into  the  liun<ls  of  honest 
purchasers,  the  lirst  owner  must  bear  the 
loss.  Thus,  to  take  an  iiistunce  from  our 
own  reports,  where  goods  were  obtained 
by  a  sale  on  credit,  under  n  forged  reconi- 
mendatioii  and  guaranty,  and  then  sold 
to  a  bona  tide  purchuser  in  the  customary 
course  of  trade,  the  second  buyer  was  pri>- 
tected  in  his  posseshlon  against  the  de- 
frauded originalowner.  (  Mowrey  v. Walsh, 
H  t'Dwen.  iM:!.)  So.  again,  where  the 
owner  gave  possession  aiKl  the  iip[iarent 
title  of  property  to  a  purchaser,  who  gave 
his  wortliless  note,  in  fraudulent  contem- 
plation of  immediate  liankrnptcy,  a  fair 
)>urcliase  from  the  fraudulent  vemlee  was 
held  to  be  good  against  tlie  tirNt  owner. 
(Hoot  V.  French.  1:5  Weii.lell.  .VJ.  .See, 
also.  .Mct'arty  v.  Vickery,  12  Johns.  K.,:t4s. ) 
In  all  such  cases,  to  protect  the  new  pur- 
chaser, there  must  be  a  full  consent  of  the 
owner  to  the  iransfi'r  of  property,  though 
such  consent  might  he  tempi.rary  only 
obtaiiieil  by  fraud  or  mistake,  and  there- 
fore revocable  against  such  unfair  pur- 
chaser. 

II.  The  other  clnss  of  cases  in  which  the 
owner  loses  the  right  of  following  and 
reclaiming  his  property  Is,  where  lit  has, 
b.v  Ills  own  voluntary  act  or  consent, 
given  to  another  such  evideticeof  the  right 
of  selling  his  goods  as.  accoriliiig  to  the 
custom  of  trade,  or  the  coir.inon  under- 
standing of  the  world,  usually  accompa- 
nies the  authority  of  iiinposal;  or.  to  use 
the  language  of  Lord  Kllenborough.  when 
the  owner  "  has  given  the  e.xteriial  indicia 
of  the  right  of  disposing  of  his  property. " 
Here  it  is  well  settled  that,  however  the 
possessor  of  such  external  indicia  may 
.'iliiise  tlie  conlideiiceof  his  principal, a  sale 
to  a  fair  purchaser  divests  the  tirst  title, 
and  the  authority  to  sell  so  c<rnferi-ed, 
whether  real  or  apparent,  IH  good  against 
him  who  gave  it. 

1  lius,  the  consignee,  in  a  liill  of  lading, 
is  furnished  by  his  consignor  with  such 
evidence  i>f  right  of  disposal,  according  to 
the  custom  and  law  of  traile.  so  that  the 
bona  tide  hoMerof  the  bill  endorseil  liy  the 
consignee  is  entitled  to  all  the  rights  of 
property  of  the  consignor  in  those  gooiU. 
if  bought  fairly  in  the  course  of  buKlness, 
although  the  actual  consignee,  uinler 
whose  endorsement  he  holds,  has  no  rijjht 
to  the  goods  as  ng.'iinst  the  formerowier. 
H  such  gooils  were  not  paid  tor.  they 
niiglit  liestopped  intraiiHilii  b.v  theowrer, 
unless  his  consignee  has  iiln-ady  assigne<j 
his  bill  of  lading;  but  that  assignineut 
divests  the  owner  of  his  right  of  btoppuge 
against  such  assignee. 

The  famous  series  of  decisions  In  the 
varioas  courts  in  the  case  of  Lickliarrow 
V.  Mason.  {.•-  T.  H.  iVl;  :.•  H.  Dlack.  K.  I'll; 
,tT.  It.  :tr.7,l  which  led  to  the  estalillsh- 
nientof  the  doctrine  uf  this  qualllkHl  nci;u- 


680 


SALTUS  V.  EVERETT. 


tiability  of  bills  of  lading,  njemorable  alike 
in  lesal  anil  commercial  history,  strongly 
illustrateH  the  whole  question  before  lis. 
There,  HiiUer  antl  his  associate  judges, 
trained  up  at  the  feet  of  the  great  father 
of  Iiiris'lish  commercial  jnrispniilence,  main- 
tained and  established  the  law  as  we  now 
hold  it,  under  the  influTice  of  Mansfield's 
genius  upon  his  reasoning  and  on  his  au- 
thority, against  those  of  Lord  Loughbor- 
ough and  others,  tlie  most  learned  law- 
yers of  their  times.  .Ml  the  arguments 
and  admissions  of  l)oth  sides  thow  how 
deeply  the  general  i)rin(  iple  is  root(Ml  in 
the  law  of  England,  that  (to  use  Lord 
Lough'iiorough"s  words)  "mere  posses- 
sion, without  a  just  title,  gives  no  prop- 
erty, and  the  person  to  whom  such  pos- 
session is  transferred  by  delivery  must 
take  the  hazard  of  the  title  of  its  author." 
It  is  only  as  an  e.\|)ress  exception  to  this 
rule  that  it  was  maintained,  and  finally 
established,  that  the  custom  of  merchants, 
evidenced  and  sanctioned  by  legal  deci- 
sions, and  fonnded  on  those  conveniences 
of  trade,  so  admirably  stated  i>y  Buller, 
had  compelled  the  courts  to  consider  the 
owner  as  giving  his  consignee  evidence  of 
the  iiower  of  disposal,  which  it  was  not 
for  him  to  dispute  when  the  goods  had 
fairly  passed  into  other  hands,  on  the 
faith  of  that  evidence.  But  there  is  no 
case  to  be  found,  or  any  reason  or  anal- 
ogy anywhere  suggested  in  the  books, 
wliich  would  go  to  show  that  the  real 
owner  could  be  concluded  by  a  bill  of  lad- 
ing not  given  by  himself,  hut  by  some  third 
person,  erroneously  or  fraudulently,  as  in 
this  present  case.  The  assignment  of  the 
bill  of  lading  conveys,  not  an  absolute 
right  to  goods,  but  the  right  and  title 
merely  of  the  actual  consignor,  who  alone 
is  bound  by  it. 

Again:  the  owner  ma.v  lose  the  right 
of  recovering  his  goods  against  purchas- 
ers, by  exhibiting  to  the  world  a  third 
person  as  having  power  to  sell  and  dis- 
pose of  them  ;  and  this,  not  only  by  giv- 
ing a  direct  authority  to  him,  but  by  con- 
ferring an  implied  authority.  Such  an 
authurity  may  be  implied  by  the  assent  to 
and  ratilication  of  prior  similar  dealings, 
so  as  to  liold  such  person  out  tt)  those 
with  whom  he  is  in  the  habit  of  trading, 
as  authorized  to  buy  or  sell.  It  ma3'  be 
inferred  from  the  nature  of  the  business  of 
the  agent,  with  lit  accompanying  circum- 
stances- "If  a  man,"  says  Bayley,  J.,  in 
Pickering  v.  Busk,  (1.5  East,  44,)  "puts 
goods  into  another's  custody,  whose  com- 
mon business  it  is  to  sell,  he  confers  an  ira- 
plieil  authority  to  sell,"  and  the  cause 
was  decided  on  that  ground.  But  this 
implied  authority  must  arise  from  the 
natural  and  obvious  interpretation  of 
facts,  according  to  the  habits  an<l  usages 
of  business;  and  it  never  applies  where 
the  (diaracter  and  business  of  the  person 
in  possession,  do  not  warrant  the  reason- 
able presumntion  of  his  being  em])owored 
to  sell  propertj'  o!  that  kind.  If,  there- 
fore, to  use  an  illustration  of  Lord  Chief 
Justice  Ellenborough,  in  the  case  just  cit- 
ed, a  person  entrusts  his  watch  to  a 
watchmaker  to  be  repaiied,  the  watch- 
maker is  not  exhibited  to  the  world  as  an 
owner  or  agent,  ami  credit  is  not  given  as 


such,  because  he  has  posse-^ision  of  the 
watch,  the  owner,  therefore,  would  not 
be  bound  by  his  sale.  When  these  excep- 
tions cease,  the  geiitral  rule  resumes  its 
sway;  and  the  law  is  therefore  clear,  that 
an  agent,  for  a  particular  purpose,  and 
under  a  limited  i)owei',  cannot  bind  his 
principal  if  he  exceed  his  power.  "  Who- 
ever deals  with  an  agent  constituted  for 
a  special  puri).>8e,  deals  at  his  iieril,  when 
the  agent  passes  the  precise  limits  of  his 
power."  ("J  Kent's  Coium.  Glil,  and  the 
authorities  there  cited.) 

Beyond  the  precise  exceptions  I  have 
above  stated  I  think  our  law  has  not  car- 
ried the  protection  of  the  fair  vendee 
against  the  defrauded  or  unfortunate 
owner.  It  protects  him  when  the  owner's 
misplaced  confidence  has  voluntarily  given 
to  another  the  apparent  right  of  property 
or  of  sale.  But  if  the  owner  loses  his  prop- 
eity,  or  is  robbed  of  it,  or  it  is  sold  or 
pledged  without  his  consent  b.y  one  who 
lias  only  a  temporary  right  to  its  use  by 
hiring,  or  otherwise,  or  a  (jualitied  pos- 
session of  it  for  a  specific  purpose,  as  for 
transportation,  or  for  work  to  be  per- 
formed on  it,  the  owner  can  follow  and  re- 
claim it  in  the  hands  of  any  person,  how- 
ever innocent.  Among  the  numerous 
cases  to  this  effect,  1  will  cite  only  that  of 
Hoare  v.  Parker,  (2  T.  R.  :!7(j,)  which  I 
select  not  only  on  account  of  the  strong 
and  unhesitating  manner  of  the  decision, 
but  because  it  was  pronounced  by  the  very 
judges  who,  in  the  case  of  Lickbarrow  v 
Mason,  had  carried  the  protection  of  a 
bona  tide  purchaser  under  a  bill  of  lading 
far  beyond  tlie  rig(;r  of  the  ;Kicient  la  w. 
There,  plate  had  been  pawned  by  a  widow 
who  had  only  a  life  interest  in  it  under  her 
husband's  will,  of  which  fact  tlie  pawnee 
had  no  notice.  It  was  not  doubted  that 
the  lien  for  the  moneys  advancecl  on  such 
pledge  was  void  against  the  remainder- 
man, after  the  widow's  ileatli.  "Per 
curiam:  This  point  is  clearly  settled,  and 
the  law  must  remain  as  it  is,  until  the 
legislature  think  it  tit  to  provide  that  the 
possession  of  such  chattels  is  proof  of 
ownersliip."  J n  order  to  decide  in  such 
conflicts  between  the  claims  of  equally 
meritorious  sufferers  by  the  wrong  of  a 
third  party,  pul)lic  policy  must  draw  an 
arbitrary  line  somewhere,  and  ihegreatest 
merit  of  siicli  a  rule  must  be  its  certainty 
and  uniformity. 

The  rule  of  our  law,  as  I  nuderstand  it, 
is  perfectly  consistent  with  the  equity  be- 
tween the  parties,  as  far  as  such  equity 
can  apply;  and  it  serves  the  great  inter- 
ests of  commerce,  in  a  state  of  such  exten- 
sive foreign  and  domestic  trade  as  ours, 
by  protecting  the  property  of  thestranger, 
as  well  as  of  our  own  citizens,  against  the 
possilile  fi-auds  of  carriei's  by  sea,  or  by 
internal  transportation,  whilst  it  throws 
uiion  the  resident  merchant  the  responsi- 
bility of  taking  care  with  whom  he  deals, 
and  teaches  hitu  a  less(jn  of  wholesome 
caution.  It  is  no  mean  proof  of  the  wis- 
dom of  the  rule,  that  it  agrees  in  substance 
with  the  provisions  of  tlie  Napoleon  Code. 
The  Code,  like  our  la^v,  hohis  as  a  general 
rule,  that  the  sale  of  goods  by  any  but  the 
true  holder,  is  a  nullity;  "La  vente  de  la 
chose  d'aiitrui  est  nulle."     (Code  Civil  III. 


SALTUS  V.  EVERETT. 


681 


art.  LIOO.)  It  conliiieB  the  nuthority  of 
tlio  H|ii'rijil  aRi'iit  ur  niaiida tiiire  to  the 
Htrict  limits  of  hin  power;  anil  in  naloH, 
thi-  power  must  always  bo  Hpecial  anil  ox- 
preHH.  (Code  Civil,  art.  '.ils'J.)  It  allowH 
the  ri^ht  of  revetiilication  or  Ktojipajje  In 
traii.silii  aKaiiiKt  the  insolvent  or  rraiiilu- 
lent  parchaser  or  eoiisiKneo;  hat  that 
rif^ht  eeasPH,  as  Willi  us,  ai;ainst  the  con- 
signee, when  the  kooiIs  have  been  fairly 
sold  aceorilhiK  to  the  hills  of  ladinf;;  "ven- 
dues sans  frauile  sur  factures  et  oonnaisse- 
ments. "  (Code  de  Commerce,  Liv.  111.. 
art.  .07G,  .177,  .">7S.)  The  Seotili  law,  as  1 
gather  from  Itell's  Commentaries,  lays 
down  a  different  rule,  that  "a  purelinser, 
in  the  cour.se  of  trade,  should  he  protected 
in  the  imrehase  of  floods  from  any  one 
who  has  them  iii  lawful  possession." 
Tills  agrees  with  the  doctrine  of  our  supe- 
rior court,  and  miiiht  he  a  safe  enough 
rule  if  •;<  iierally  adopted  and  nndcrstooil. 
r.ut  it  is  not  the  rule  of  our  own  law,  j 
which  is  perhaps  nuito  as  wise,  as  well  as 
certainly  founded  on  a  much  larger  and 
wider  commercial  experience. 

Let  us  apply  these  conclusions  to  the 
present  case.  Collins,  the  person  whose 
sale  it  is  asserted  must  divest  the  ori)>inal 
owner  of  his  rlKlits  in  favor  of  the  l)oua 
tide  purchaser,  stands,  it  is  said  l)y  the  su- 
perior court,  in  a  double  relation  of  "a  mas- 
ter, who  is  at  the  same  time  the  consignee 
of  the  fj;oods,  and  who  himself  filled  the 
character  of  shipper,  and  has  thoi'eforo  an 
undoubted  power  to  sell,  and  his  bona  fide 
transfer  will  he  effectual  to  purchasers 
a;;:.iiMst  any  secret  trust  for  others  with 
which  his  apparent  title  mitfht  be  aflect- 
cd."  Had  the  lead  been  cousiHned  to  Col- 
lins from  the  intermediate  port,  l)y  the 
owner  or  his  aKent,  this  would  be  true. 
Hut  it  isshii)iieil  by  Myers,  of  whom  neither 
the  owner,  nor  any  one  with  full  power  to 
represent  him  in  this  matter,  had  any 
knowledge  as  an  a^ent,  and  under  whose 
care  the  vessel  and  car;io  were  placed  by 
Collins,  so  that  he  appeared  only  as  his 
representative,  and  tlius  he  styles  himseif 
in  the  bill  of  lading-  'Ihe  plaintiff  below 
comes  in  no  wise  within  the  rule  I  have 
stated,  lie  has  neither  siven  to  Collins 
documentary  and  mercantile  evidence  of 
property  in  a  bill  of  lading  from  himself  or 
his  own  aui'iit  with  comi)etent  power, nor 
the  evidence  customary  in  business,  such 
as  to  Ixdil  him  out  as  anag<-nt  authori7,eil 
to  change  the  title  of  his  property  in  his 
goods.  'l"he  assumed  authority  of  ship- 
ping goods  in  his  own  name  arid  to  his 
own  order,  at  Norfolk,  and  the  documen- 
tary evidence  of  it  in  the  bill  of  lading, can 
have  no  more  effect  as  to  the  title  of  the 
pri)t)erly,  than  if  he  had  forged  such  a  bill 
of  lading  at  New  (Orleans. 

Neither  does  the  selection  of  a  ship  and 
Its  master  vest  in  the  master  any  implied 
authority  to  sell  the  ship,  or  any  part  of 
her  cargo.  His  business  is  to  carry  the 
goods,  and  no 'more,  with  some  other 
clearly  delined  and  very  limited  powers,  to 
lie  exercised  only  in  cases  of  abs<dutenc-i 
cessity.  He  stands  In  the  same  legal  rela- 
tion to  his  cargo  with  the  watchmaker,  in 
the  case  supposed  by  Lord  Kllenborough, 
who  has  in  his  hands  a  watch  to  be  re- 
paired.    He  is  not  exhibited    to  the  world  ; 


as  the  owner,  or  agent  for  Belllnii:  and  If 
he  does  sell  it,  the  sale  is  void  agalast  the 
true  proprietor.  'Ihe  law  of  shlpiilng  Ih 
well  known  to  the  commercial  world,  to 
declare  that  the  master  has  no  authority 
to  sell  the  cargo,  or  any  part  of  it,  uuIchh 
under  circumstances  of  pressinj;  necessity 
abroad;  and  of  that  absolute  necessity, 
the  burden  of  proof  rests  on  the  pur- 
chaser, and  the  presum|)tion  Is  against  It. 
.Vs.ludge  liayley  states  the  law.  ( .Morris 
v.  Roliinson,  3  Uara.  &  Cress.  l'J4;.i"The 
caplain  has  no  right  to  act  as  agent  for 
the  owner  of  the  goods,  unless  in  absolute 
necessity.  The  purchaser  obtains  no, irup- 
erty  liy  the  act  of  his  professing  to  sell." 
And  this  was  held  where  the  master  acted 
in  perfect  good  faith.  How  much 
stronger  is  the  case  of  u  probable  fraud! 
'i'hus  again,  in  Freeman  v.  East  India  Co., 
(5  Harn.  &  Aid.  Ol'J,)  Abbott,  Ch.  J.,  savH, 
"a  Rale  of  a  cargo,  or  any  part  of  It,  by 
the  master.can  conferno  title,  uidess  there 
was  an  absolute  necessity  ,"  and  the  rea- 
son of  the  rule  is  thus  assigned  by.ludge 
Best  in  the  same  case:  "  .\  carrier  by  sea 
and    by  laud   stands  in    tl.esnuie  relation 

to    the   owner    of    g Is    to    be    carried. 

Their  duty  is  to  carry  the  goods,  and  the 
authority  only  such  as  is  necessary.  The 
purchaser,  knowing  that  necessity  alone 
can  justify  the  sale,  and  give  him  n  title  to 
what  he  bu.vs,  will  assure  himself  that 
there  is  a  real  necessity  for  tlie  sale  liefore 
he  makes  the  purchase;  and  caution  on 
his  part  will  prevent  what  has  Irei|uently 
happened,  the  fradulnent  sale  of  ships  uiid 
cargoes  in  foreign  i)orts."  Such.  then,  be- 
ing the  well-settleil  ami  generally  Unown 
law,  the  selection  of  a  master  or  any 
other  carrier,  by  sea  or  land,  does  noth- 
ing to  exhibit  such  carrier  to  the  world  .ns 
having  theiiowerof  disposiiigol  thegoods 
he  carries.  The  owner  does  nothing  to 
enable  him  to  comuiil  a  friiud  on  third 
persons.  He  gives  merely  a  qualilied  pos- 
session, and  if  that  ia  turned  into  an  as. 
sumed  right  of  ownership,  it  is  tortious 
conversion,  and  will  not  divest  the  own- 
er's title. 

It  is  true  that  the  rule  will  aoinetinies. 
as  was  urged  by  Chief  Justice  .Jones,  "in- 
volve purchasers  in  great  perils;"  hut 
that  i)eiil  can  scarcely  he  called  "unrea- 
sonable,"  since  there  is  a  reason  of  public 
policy  of  at  least  eiiual  weight  to  counter- 
balance this  inconvenience.  It  Is  the  same 
which  is  the  ground  of  the  ahsidute  pro- 
hibition ton  master  or  carrier  to  sell  the 
goods  he  transports  except  under  Insur- 
mountable necessity ;  It  is  to  prevent.  In 
the  language  of  the  court  in  the  case  just 
quoted,  (.")  iSarn.  vt  .Mil.  t>l';l.)  "fraudulent 
sales  of  ships  and  cargoes  ia  foreign 
ports."  .Now  the  fraudident  consign- 
ments or  change  of  the  apiiarent  evidence 
of  property  for  the  purpose  of  selling  else- 
where, is  but  another  form  of  the  same 
evil.  I  may  add  that  this  same  ride,  how- 
ever rigid  and  occasionally  hard  in  its  op. 
(■ration,  is  no  small  safeguard  to  the  prt)- 
teetlon  of  the  owner's  rlgiits  In  goods  and 
other  (iroperty,  in  active  coiunierce  nei-es- 
sarily  pl.-iced  linder  the  temporniy control, 
and  in  the  legal  though  (lualilled  posses- 
sion of  .'igents.  sailors,  carriers,  boatmen, 
servants,  and   clerks,   as  well  as  of  those 


082 


SALTUS  V.  EVERETT. 


who  may  have  them  stored  for  safe  keep- 
ing, ami  their  clerks,  porters,  and  serv- 
auts. 

On  the  other  question,  as  to  the  right 
of  the  defendants  below  to  stand  in  the 
place  of  their  vendor,  and  to  he  protected 
to  the  extent  of  the  charges  on  the  lead 
for  freight,  as  claimed  by  Collins,  I  need 
say  but  little.  The  right  of  lien  in  such 
circumstances,  (if  any  right  exists  here.) 
depends  upon  actual  possession  by  the 
factor  or  carrier,  or  his  immediate  agent. 
When  the  goods  are  sold  and  delivered  to 
a  third  person,  the  lien,  as  such,  expires 
with  the  possession.  This  is  the  distinc- 
tion between  the  present  case  and  the  for- 
mer suit  against  Coffin  &  Cartwright, 
who  were  immediate  agents  or  bailees  of 
Collins. 

The  two  courts  below  have  agreed  in 
deciding  against  the  validity  of  the  objec- 
tions to  the  evidence  raised  on  the  trial  of 


the  cause,  and  I  have  nothing  to  add  to 
the  reasons  they  assign;  to  all  which  I 
fully  assent. 

The  importance  of  the  principles  and 
rules  not  only  of  decision  but  of  active 
business  involved  in  this  cause,  especially 
in  relation  to  that  vast  and  busy  com- 
munity which  I  immediately  represent  in 
this  body,  has  lead  me  to  examine  this 
whole  head  of  law  with  an  interest  and 
at  a  length  wholly  disproportioned  to  the 
amount  of  value  in  controversy.  If  the 
views  I  have  been  able  to  present  shall  in 
any  way,  directly  or  indirectly,  tend  to 
settle  the  law  on  this  head,  or  make  it 
more  clearly  and  correctly  understood, 
the  study  1  have  given  the  subject  will 
have  been  well  bestowed. 

I  am  of  opinion  that  thejudgment  of  the 
sui)reme  court,  reversing  that  of  the  supe- 
rior court  of  New-York,  be  affirmed. 

Judgment  unanimously  affirmed. 


I 


SANBORN  V.  FLAGLER. 


685 


SANIJORX  et  al.  v.  FLAGLER. 
(9  Allen,  474.) 

Supreme   Jmlirial   Court  of  &las.sachusetts. 
Nov.,   1SG4. 

Contract  hrnuclit  t)y  plnintiffn,  who 
were  pnrtncrH  under  the  firm  u(  Siinlioin, 
HicharclKoii  &  Co.,  iiK"iiiHt  .John  H.  Fhiyiler 

and llcjidune,  uh  partners  under  the 

llrm  of  lloldtinu  &  Co.  The  writ  wmh 
Herved  only  upon  Klau'er.  The  plnintirtH 
alleged  that  the  defendants  had  refused  to 
deliver  to  them  fifty  tons  of  hewt  relined 
iron,  in  areordanee  with  a  written  agree- 
ment etilereil  into  between  them.  The  de- 
fendant wet  up  amouK  other  defeuHes  the 
statute  of  frauds.  One  of  the  |)laintiffs 
was  called  to  the  stand,  and  iirodueed  to 
be  offered  In  evidence  a  paper,  of  which  the 
followiuK  is  a  copy  as  nearascan  beniade: 

•■  Will  deliver  S.  K.  &  Co.  best  rehned  Iron 
50  tons  within  90  days — at  .'i  ct  p  lb  4  of 
cash.  I'lates  to  be  10  to  10  inches  wide 
and  1)  ft  to  11  louK-  This  offer  j^ood  till  li 
o'clock  Sept.  11,  1802.     .1.   U.  F.     .1.  U.  R." 

The  defendant  objected  that  the  paper 
wasnot  a  suflicient  memorandum  in  writ- 
ing of  the  aliened  bargain  signed  by  tin- 
party  to  be  cliary:ed,  and  that  parol  evi- 
dence was  not  ndmissibleso  as  to  make  it 
such  a  memorandum  as  co\ild  be  admitted. 
Thejud^e  ruled  that  the  paper  was  a  sudi- 
eient  memorandum,  and  would  bind  the 
defendant  if  he  was  a  member  of  the  firm 
of  Holdane  &  Co.  The  witness  then  testi- 
fied that  the  a^reenjent  was  wiitten  by 
him,  and  that  he  and  the  deleiidant  si;;ne(! 
their  initials,  the  defendant  writing  tin- 
initials  ".I .  II.  F., "  and  he  the  initials".!. 
U.  H. ;"  and  that  before  the  defendant  left 
the  plaintifl's  ollice,  and  before  1' o'clock. 
he  accepted  the  proposition,  and  so  stated 
to  the  defendant  verbally.  The  witness 
testitied  that  he  sijrned  his  initials  on  be- 
half of  the  plaintiffs,  and  that  he  under- 
stood the  defendant  to  si>;n  for  the  firm 
of  Holdane  &  Co.  This  evidence  was  not 
denied  by  the  defendant.  The  ,iud;ie  ruled 
that  said  paper,  with  the  exiilanation 
given,  if  Richardson  w;is  believed,  was  a 
Blitlicient  note  or  men)orainhim,  and  was 
binding  o"  the  <lefendant  if  the  jury  found 
him  to  be  a  partner  as  alh'Ked.  The  jury 
found  a  verdict  for  the  plaiutiffs.  and  the 
defendant  alleged  exceptions. 

A.  A.  Ranney,  for  plaintiffs.  C.  T.  Rub- 
sell,  for  defendant. 

DI(iELt)\V,C.  .1.  The  note  or  memoran- 
dum on  wliicli  the  plaintiffs  rely  to  main- 
tain theiraction  contains  all  the  reiiuisites 
essential  to  eon-ititute  a  binding  contract 
within  the  statute  of  frauds.  It  is  not  de- 
nied l)y  the  defendant  triat  a  verbal  ac- 
ceptance of  a  written  offer  to  sell  mer- 
chandise is  sufficient  to  constitute  a  com- 
plete and  obligatory  agreeiiicnt.  on  whii-h 
to  charge  the  i)erson  by  whom  it  is  signed. 
In  such  case,  if  the  memorandum  is  other- 
wise sullicicnt  when  it  is  assented  to  by 
him  to  whom  the  proposal  has  been  made, 
the  contract  is  consummated  by  the  meet- 
ing of  the  minds  of  the  two  parties,  and 
the  evidence  necessary  to  render  it  valiil 
and  capable  of  enforcement  is  supplied  liy 
thesigaature   of   the  party  sought    to    be 


charged  to  the  offer  to  sell.  Indeed,  the 
rule  being  well  settled  that  the  signature 
of  the  defendant  only  is  necessary  to 
make  a  binding  Contract  within  the  pro- 
visUjns  of  the  statute  relating  lu  saleH  of 
merchandise,  it  necessarily  fi>llowri  that 
an  offer  to  sell  and  an  express  iigreement 
to  sell  stand  on  tne  same  fooling,  iaari- 
tiiucli  MS  the  latter,  until  it  is  accepted  liy 
the  cither  |»arty,  is  in  effect  nothing  more 
than  a  proposition  to  sell  un  the  terms 
indicated.  Tlie  acceptance  of  the  contract 
by  the  parly  seeking  to  enforce  it  may  al- 
ways l)e  provetl  by  evidence  aliunde. 

The  objections  on  which  the  defendants 
rely  are  twofold.  The  hrst  is  that  the 
note  or  memorandum  does  not  set  forth 
upon  its  face,  in  sucli  manner  as  to  lie  un- 
di-rstood  by  the  court,  the  essential  ele- 
ments of  a  contract.  Rut  tills  position  is 
not  tenable.  'I'he  nature  and  ilescription 
of  tli<-  merchandise,  the  i|nantity  sold, 
the  price  to  lie  paid  therefor,  the  terms  of 
payment,  and  the  time  witliln  which  the 
article  was  to  lie  delivered,  are  all  cl"-arly 
set  forth.  But  it  is  urged  that  the  paper 
does  not  disclose  which  of  the  parties  is  the 
purchaser  and  which  the  seller,  and  that 
no  purchas<>r  is  in  fact  named  in  the  pa- 
per. This  would  be  a  fatal  olij'-ction  if 
well  founded.  There  can  be  no  contract 
or  valiil  memorandum  of  a  contract  which 
does  not  shew  who  are  the  contracting 
parties,  liut  there  is  no  such  defe<-t  in 
the  note  or  niemoran<ium  lielil  l)y  the 
plaintiffs.  Tlie  stipulation  is  explicit  to 
deliver  mercliannise  to  S.  R.  A;  Co.  It  cer- 
tainly needs  no  argument  to  demoiistr.ite 
that  an  agreeiiipnt  to  deliver  goods  at  n 
li.\ed  price  and  on  si  ecilied  terms  of  pay- 
ment is  an  ngreeinent  to  sell.  D?livfry  ol 
goods  at  a  stipulated  price  constitutes  a 
sale;  an  agreement  for  sucli  delivery  Is  a 
contract  of  sale.  Nor  can  there  be  any 
doubt  raised  as  to  the  intrinsic  import  of 
tin- memorandum  concerning  theeharac- 
ter  or  capacity  in  which  the  parties  are 
intended  to  be  named.  A  stipulation  to 
deliver  merchandise  to  a  pers<in  clearly  in- 
dicates that  he  Is  the  purchaser,  because 
in  every  valid  sale  of  goods  delivery  must 
be  macie  by  tlie  vendor  to  tlie  veiidet-.  We 
can  therefore  see  no  ambiguity  in  the  in 
sertion  of  the  name  of  the  purchaser  or 
seller.  Tlie  case  is  much  stiongcr  in  favor 
of  the  validity  of  the  nii'moiii:nliiin  in  this 
respect  tlian  "that  of  Snlinon  Falls  Maiiiif. 
Co.  v.  (ioildard.  U  How.  440.  There  only 
the  names  of  the  parlies  were  Inserted, 
withiilit  any  word  to  indicate  which  was 
the  Imyer  and  which  was  the  seller.  It 
was  this  uncertainty  in  the  memorandum 
which  formed  the  miiin  ground  of  the>ery 
able  dissenting  opinion  of  .Mr.  .lustice 
Curtis  ill  that  case.  So  in  the  leading  ease 
of  iSailey  v.  Ogden,  :i  .Itihns.  ;i"JU,  there 
was  not  fling  in  the  memorandum  to  shew 
which  of  the  two  parties  named  agreed  to 
sell  the  merchandise.  Hut  in  the  case  at 
bar.  giving  to  the  paper  a  reasonalile  lii- 
terprelation,  as  a  brief  document  drawn 
up  ill  the  haste  of  business  and  Intended 
to  express  in  a  few  wonls  the  terms  of  H 
bargain,  we  cannot  entertain  a  doulit 
that  it  indicates  with  siiltlcieiit  clearness 
that  the  pliMiitiffs  were  the  purchasers, 
and    the  dch-ndant    the   seller    of    the  iiier- 


686 


SAXBOUN  V.  FLAGLER. 


cliandise,  on  the  terms  therein  expressed. 
Indeed  we  can  see  no  reason  why  a  writ- 
ton  agreement  by  one  party  to  deliver 
goods  to  another  party  does  not  as  clear- 
ly shew  that  the  latter  is  the  pnrchaser 
and  the  former  the  seller  as  if  the  agree- 
ment had  been  in  express  terms  by  one  to 
sell  goods  to  the  other. 

The  other  objection  to  the  memoran- 
dum is  that  the  name  of  the  party  sought 
to  he  charged  does  not  appear  on  the  face 
of  the  paper.  If  by  this  is  meant  that  the 
signatures  of  all  the  persons  who  are 
named  as  defendants  are  not  affixed  to  the 
memorandum,  or  that  it  is  not  signed 
with  the  copartnership  name  under  which 
it  is  alleged  that  the  persons  named  as  de- 
fendants do  business,  the  fact  is  certainly 
so.  But  it  is  not  essential  to  the  validity 
of  the  memorandum  that  it  should  be  so 
signed.  An  agent  may  write  his  own 
name,  and  thereby  bind  his  principal; 
an<\  parol  evidence  is  competent  to  prove 
that   he  signed   the  memorandum   in  his 


capacity  as  agent.  On  the  same  principle, 
a  (lartner  maj'  by  his  individual  signature 
bind  the  firm,  if  the  contract  is  within  the 
scope  of  the  business  of  the  firm,  which 
may  be  shewn  by  extrinsic  evidence. 
Soames  v.  .Spencer,  1  D.  &  R.  32;  Long  on 
Sales.  38;  Browne  f>n  Statute  of  Frauds, 
!j  :!(;7 ;  Higgins  v.  Senior,  S  M.  &  W.  s;j4; 
Williams  v.  Bacon,  2  Gray,  387,  393.  Be- 
sides, in  the  case  at  bar,  the  action  is  in 
effect  against  Flagler  alone.  He  only  ha.=i 
been  served  with  process  and  appears  to 
defend  the  action.  Whether  he  signed  as 
agent  for  the  firm  or  in  his  individual  ca- 
pacity is  immaterial.  In  either  aspect  he 
is  liable  on  the  contract. 

It  is  hardly  necessary  to  add  that  the 
signature  is  valid  and  binding,  though 
made  with  the  initials  of  the  party  only, 
and  that  parol  evidence  is  admissible  to 
explain  and  apply  them.  Phillimore  v. 
Barry,  1  Camp.  513;  Salmon  Falls  Manuf. 
Co.  v.  Goddard,  ubi  supra;  Barry  v. 
Combe,  1  Pet.  640.     Exceptions  overruled. 


SANGER  V.  WATEKBUUr. 


689 


SANGKll  et  al.  V.  WATERBURY  et  al. 

(•,"•:  N.  E.  Rep.  404,  116  N.  Y.  371.) 

Court  of  Appeals  of  New  York,  Second  Divis- 
ion.    Oct.  22,  18*9. 

Appeal  from  jiuigment  of  the  general  term 
of  tlie  supreme  court,  in  the  second  jmliciul 
department,  entered  iijion  an  order  made  De- 
cember 14,  188G,  wliieli  aliirraed  a  judgment 
in  favor  of  llio  defendants,  entered  upon  a 
verdict  directed  by  the  court.  This  was 
an  action  of  replevin  brought  to  recover  the 
possession  of  238  bags  of  coffee  identilied 
and  described  in  the  complaint  as  follows: 
"89  bajis,  marked  Xo.  G,  II.  L.  U.  &  Co., 

D.  15.  &  Co.;  32  bags,  marked  No.  8,  H. 
h.  IJ.  &  Co.,  D.  B.  &  Co.;  14  bags,  marked 
No.  10,  II.  L.  H.  &  Co.,  D.  13.  &  Co. ;  2'J  bags, 
marked  No.  12,  II.  L.  15.  &  Co.,  D.  15.  &  Co.; 
68  bags,  marked  No.  14.  II.  L.  IJ.  &  Co.,  D. 
15.  &  Co.;  6  bags,  marked  No.  1(3,  II.  1,.  15.  & 
Co.,  U.  B.  &  Co."  The  complaint  alleged, 
and  the  answer  atlmitted,  "that  on  or  about 
the  22d  day  of  July,  1885,  the  said  goods 
*  *  *  were  sold  by  the  plaintiffs  to  the 
defendants  John  K.  Huston  and  James  E. 
Huston,  *  *  *  on  the  credit  of  sixty 
days  for  one-half  thereof,  and  of  ninety  days 
lor  the  balance  Iheieol."  Itappeared  thai  the 
plaintiffs,  on  the  tjth  day  of  July,  1885,  pur- 
chased of  Boulton,  Bliss  &  Dallett  005  bags 
of  coffee,  then  stored  with  E.  15.  Bartlelt  & 
Co.  On  the  22dday  of  July  the  plaintilfssold 
the  238  bags  of  coffee  hereinbefore  referred 
to  to  J.  K.  Huston  &  Co.,  of  I'hiladelidiia. 
That  (irni,  on  the  24th  day  of  .luiy,  up- 
on the  security  of  the  coffee  thus  purcliaseJ, 
borrowed  from  the  defendants  AVaterbnry  i^- 
Force  .$2,300,  and  then  transferred  thecoffrc 
to  llieiii.  On  .luly  27lli  following,  said  (irni 
failed,  making  a  general  assignment.  On 
the  next  day,  the  plaintiffs  commenced  this 
action,  by  means  of  which  the  <  offee  was 
taken  from  the  poss"ssion  of  Waterbury  & 
Eorce.  The  coffee  then  w;is,  as  it  had  been 
from  the  time  of  the  purchase  by  the  plain- 
tiffs, actually  deposited  in  the  warehouse  of 

E.  15.  Barllett  <&  Co.,  and  had  not  iisyet  been 
weighed. 

William  W.  Goodrich,  for  appellants.  Ed- 
ward N.  Sht/iard,  for  resiwndents. 

Paukeu,  J.,  {after  stati..g  the  facts  as 
iibore.)  The  appellant  contends  that  the  title 
to  the  coffee  in  controversy  did  not  pxss  to  J. 
K.  Huston  &  Co.,  and  that  therefore  the  trans- 
fer to  Waterbury  &  Force  di  1  not  vest  in 
them  the  title  or  the  possession.  The  sale 
is  admitted;  but  as  the  cotTee  had  to  be 
Weighed,  in  order  to  ascertain  the  amount  to 
be  paid  to  i)laintilTs,  it  is  insisted  that  the 
title  remained  in  the  plaintiffs.  In  aid  of  this 
LAW  SA Lies— 44 


contention  is  invoked  the  rnle  that  where 
something  remains  to  be  done  by  tlie  seller  to 
ascertain  the  identity,  quantity,  or  quality  of 
the  article  sold,  or  to  put  it  in  the  condition 
which  the  contract  requires,  tlie  title  remains 
in  the  vendor  until  the  condition  be  complied 
with.  The  appi.-IIant  cites  a  number  of  au- 
thorities which,  he  urges,  so  apply  this  rule 
as  to  make  it  appl, cable  to  the  case  here  pre- 
sented. It  is  said  in  Groat  v.  Gile,  51  N.  Y. 
431,  that  this  "rule  has  reference  to  a  sale, 
not  of  specific  property  clearly  ascertained, 
but  of  such  as  is  to  be  separated  from  a  larger 
quantity,  and  is  necessary  to  be  identilied  be- 
fore it  is  susceptible  of  delivery.  The  rule  or 
principle  does  not  apply  where  the  number 
of  the  particular  articles  sold  is  to  be  ascer- 
tained for  the  sole  purpose  of  determining  the 
total  value  thereof  at  certain  specified  rates, 
or  a  designated  fixed  price."  This  distinc- 
tion is  recognized  and  enforced  in  Crofoot  v. 
Bennett,  2  N.  Y.  258;  Kimberlv  v.  Patchin, 
19  N.  Y.  330:  Bradley  v.  Whee'ler,  44  X.  Y. 
495.  In  Crofoot  v.  Bennett,  supra,  the  court 
say:  "If  the  goods  sold  are  clearly  identified, 
then,  although  it  may  be  necessary  to  num- 
ber, weigh,  or  measure  them,  in  order  to  as- 
certain what  would  be  the  price  of  the  whole 
at  a  rate  agreed  upon  between  the  parties,  the 
title  will  pass."  This  expression  of  thecourt 
is  citeil  with  approval  in  Burrows  v.  Wliita- 
ker,  71  N.  Y.  291,  in  which  case,  after  a  full 
discussion  of  the  authorities,  the  court  ap- 
proved the  rule  as  laid  down  in  Gro.it  v. 
Gile,  supra.  Now  applying  that  rule  to  the 
facts  in  this  case,  nothing  remained  to  be 
done  in  order  to  identify  the  goods  sold:  be- 
cause while,  out  of  u  larger  lot,  23S  b.igs  of 
coffee  were  ilisposed  of,  nevertheless,  as  ap- 
pears from  the  complaint  and  the  testimony 
adduced,  the  bags  were  so  marked  that  there 
was  no  ditficulty  about  identifying  the  par- 
ticular bags  sold.  There  remained,  there- 
fore, nothing  to  be  done  except  to  weigh  (he 
coffee  for  the  purpose  of  ascertaining  the  pur- 
chase price;  for  whether  the  2^38  bags  of  cof- 
fee should  prove  to  weigh  more  or  less  than 
the  parlies  anticipated  was  not  of  any  con- 
sequence. Whatever  should  prove  to  be. 
for  that  number  of  pounds  J.  K.  Hus- 
ton &  Co.  had  agreed  to  pay.  This  case, 
therefore,  does  not  come  within  the  rule  con- 
tended for  by  the  appellants,  but.  insiead.  is 
governed  by  the  principle  enunciated  in  Groat 
V.  Gile.  Having  reached  the  conclusion  that 
the  title  and  the  possession  passed  to  J  K. 
Huston  &  Co.,  it  becomes  unnecessary  to 
consider  any  of  the  other  questions  discussed, 
for  the  plaintiffs  are  without  title  upon  which 
to  found  the  right  to  maintain  an  action. 
The  judgment  appealed  from  should  be  af- 
firmed.    All  concur. 


SAWYKK   0.  DKAX. 


691 


SAWYER  V.  DEAN. 

(31  N.  E.  Rep.  1013,  114  N.  Y.  469.) 

Court  of  Appeals  of  New  York,  Second  UivisiOD. 
June  4,  18(59. 

Chas.  A.  Clfirk,  for  appellant.  Win.  P. 
Cantwell,  for  respoiiUent. 

PoTTEit,  J.  This  is  an  appeal  by  the  de- 
fendant from  a  jiulgraent  of  tlie  (general 
term  of  the  Foil rLli  (iejiartment,  allirining  a 
judgment  agaiiust  liiiii  on  a  trial  before  llie 
court  at  si)ecial  term.  The  action  is  brought 
to  recover  damages  alleged  to  have  been  sus- 
tained by  Franklin  Sawyer,  assignor  of  the 
plaintiff,  in  conse'iuence  of  tlie  neglect  and 
refusal  of  the  defiiidant  to  accept  and  pay 
for  a  car-load  of  ."lOO  liidcs  that  ho  had  or- 
dered and  purchased  of  said  assignor,  and  di- 
rected to  be  shipped  from  Chicago,  where 
said  Franklin  Sawyer  resided  and  where  the 
hides  were,  to  Owego  in  the  state  of  New 
York,  where  the  defendant  had  a  tannery  in 
which  lie  was  conducting,  on  a  more  or  less 
extensive  scale,  the  business  of  tanning  hides 
into  leather.  The  bargain  for  the  hides  was 
made  through  corres])ondence  l)y  letter  and 
by  telegraph  coininunicatioiis  between  tlie 
parties.  Alter  the  arrival  of  the  hides  at 
Owego,  and  some  correspondenc  ■  bv  tele- 
grams and  by  letter,  and  the  sending  an 
agent  by  the  plaintiff  to  Owego  to  see  the 
defendant,  and  after  an  interview  with  the 
gentleman  so  sent  by  the  plaintiff  with  de- 
lendant's  assent  at  C)we-;o,  the  defendant 
linally  refused  to  receive  the  hides  unless  he 
had  an  opportunity  of  taking  them  from  tlie 
depot  to  his  factory,  and  tliere  opening  and 
examining,  if  not  testing  and  proving,  them. 
This  the  plaintiff  reliises  to  allow  the  de- 
fendant to  do,  and  gave  liim  notice,  at  the 
proper  time  and  manner,  that  unless  he  ac- 
cepted the  hides  in  accordance  with  the  con- 
tract, and  especially  if  he  refused,  after  the 
offer  which  had  been  made,  to  examine  the 
hides  at  the  railroad  station,  upon  a  |ilatform 
or  in  a  car,  the  hides  wouUl  bo  relumed  to 
the  seller  in  Chicago  on  account  of  tlie  re- 
fusal to  receive  and  pay  for  the  same,  and 
would  there  be  sold  for  the  best  price  that 
could  be  obtained  for  them,  and  defendant 
would  be  charged  with  the  difference  be- 
tween the  price  brought  on  the  sale  at  Chica- 
go and  the  price  agreed  upon,  together  with 
the  necessary  expenses  growing  out  of  send- 
ing the  hides  to  and  return  from  Owego,  and 
otiier  incidental  expenses  occiisioned  by  the 
refusal  of  the  defendant  to  receive  and  pay 
for  in  accordance  with  the  contract.  This 
action  is  brought  to  recover  that  difference 
and  those  expenses, — that  is,  the  difference 
between  the  contract  price  and  the  price  at 
which  they  were  sold  at  Chicago, — and  this  re- 
covery is  based  upon  that  difference  in  the 
price  and  these  expenses. 

This  correspondence  by  telegram  and  by 
letter  commenced  on  or  about  the  20th  day 
of  October,  16B2,  and  was  carried  on  for  a 


few  ilays,  and  culminated,  as  the  trial  court 
found,  in  an  agreement  to  purchase,  on  the 
part  of  the  defendant,  the  .5U0  hides,  specify- 
ing the  price  per  pound  and  quality  of  the 
hides;  and  that,  in  pursuance  of  such  con- 
tract and  purchase,  the  plaintiff's  assignor 
shipjied  the  hides  on  the  4th  of  November  to 
his  own  order,  accompanied  by  a  draft  on  the 
defendant,  sent  through  a  bank  at  Owego; 
the  hides  to  be  delivered  to  the  defendant 
upon  payment  of  the  draft,  ami  the  carrier 
of  the  railroad  company  was  directed  to  de- 
liver them  accordingly.  When  the  hides  ar- 
rived at  Owego  on  or  about  the  11th  of  No- 
vember, 1882,  notice  was  given  to  the  agent 
or  person  in  charge  of  the  defendant's  tan- 
nery that  they  had  arrived.  And  at  this  point 
the  question  in  controversy  arises  whether 
the  defendant  was  hound,  under  the  contract 
ma<le  between  him  and  plaintiff's  assignor,  to 
take  the  hides,  and  pay  the  draft,  w  ithout  any 
examination  or  inspection  of  them,  or  wheth- 
er under  the  contract  he  was  entith?il  to  an 
insjjection  of  the  hides  before  accepting  the 
draft,  or  paying  the  draft,  or  acceptance  of 
the  hides.  There  had  been  nothing  said  in 
these  negotiations  or  correspondence  between 
the  parties  until  alter  the  hides  were  shipped 
on  tlie  -Ith  of  Noveniher,  as  before  stated,  in 
res[)ect  to  the  time  or  manner  of  payment 
for  the  hides.  The  trial  court  found  that 
this  contract  wjls  consummated,  and  found 
the  contract,  by  a  inodilication  or  waiver,  re- 
sulted in  giving  to  the  defendant  the  right 
that  he  claimed,  namely,  to  an  exainiiiatioiiof 
the  hides  hefort-  an  accei)tance  of  them,  or 
acceiiting  the  draft  and  paying  it.  The  court 
should,  1  think,  from  the  evidence  have  found 
the  correspondence  between  the  ;  hiiuiilf's 
assignor  and  the  defendant,  commencing 
with  the  letter  of  inquiry  on  the  20ih  of 
October  and  the  actual  shipment  on  Novem- 
ber 4th,  that  the  defendant  ordered  of  plain- 
tiff's assignor  .">IM.)  hides,  the  quality  of  which 
was  specilied  in  tliecoi  respondence,  at  prices 
named  per  pound  for  the  hides,  and  the  same 
were  to  be  selected  by  plaintiff's  asi^ignor  for 
the  delendant,  and  the  plaintiff's  assignor 
did  ship  the  hides  accordinjily  in  his  own 
name;  and  the  same  were  received  at  the 
railroad  station  near  defendant's  tannery 
in  good  order  and  in  due  time.  The  law 
arising  upon  such  finding  is  that  the  defend- 
ant had  no  right  to  test  or  prove  the  hides, 
and  was  not  entitled  to  the  possession  of 
them  for  that  or  any  other  purpose  until 
they  were  paid  for. 

Upon  the  ordinary  agreement  to  sell  and 
to  purchase  personal  property,  in  the  absence 
of  any  agreement  or  provision  in  the  agree- 
ment as  to  the  lime  or  manner  of  p.iyment, 
delivery  and  payment  are  simultaneous  acts; 
and,  as  a  tender  is  equivalent  in  law  to  per- 
.  forniance,  a  Iciuler  of  delivery  or  payment 
j  by  one  person  to  llic  other  gives  the  person 
i  making  the  tender  the  right  to  enforce  the 
I  performanceof  the  contract  against  the  other. 
I  llayden  v.  Demets,  0;i  N.  Y.  420,  428.  Al'i. 
In  the  case  under  consideration,  defendant 


692 


SAAVYER  V.  DEAN. 


ninde  no  objection  tluit  tlie  IiiJps  were  not 
of  good  quality  or  of  tlio  quality  speuilied  in 
the  terms  of  purchase,  or"  in  the  number  of 
hides.  He  simply  insisted  that  he  had  a 
right,  under  the  contract,  to  an  examination 
ot  the  hides  before  acceptance  and  payment. 
Under  such  a  contract,  as  I  think  the  trial 
juilge  might  have  well  found  from  the  evi- 
dence in  this  case,  it  results,  as  in  the  case 
of  lliggiiis  V.  Murray,  4  Hun,  565,  and  as 
was  in  the  opinion  in  that  case  expressed 
by  Judge  Daniels,  the  plaintiff  by  sliip- 
ping  in  his  own  name,  was  simply  keep- 
ing the  possession  of  the  property,  as  he 
liad  the  right  to  do,  until  it  had  been  accepted 
and  paid  for  by  the  defendant.  By  shipjung 
in  that  manner  he  retained  and  kept  the  lien 
of  possession  as  his  security  for  the  payment 
of  the  property.  The  effect  of  the  contract 
•was  to  transfer  the  title  of  the  property  from 
plaintiff's  assignor  to  the  deferiduut,  sidjject 
only  to  the  right  of  the  assignor  to  retain 
possession  until  payment  should  be  made, 
as  long  as  no  credit  was  to  be  given,  or 
had  been  provided  for,  by  tlie  terms  of  the 
agreement.  After  the  making  of  the  con- 
tract he  became  the  agent  of  the  defendant, 
save  in  retaining  possession  of  the  property 
as  security  for  the  payment  of  the  purchase 
money,  while  title  to  the  property  was  vested 
in  the  defendant.  To  the  same  eflect  is  the 
case  of  liank  v.  Pfeiffer,  22  Hun,  327.  Also 
the  case  of  iMorey  v.  iMedbury,  10  Hun,  540. 
If  the  law  in  this  case  is  not  as  above  stated, 
the  effect  would  be  that  a  person  who  under 
a  valid  contract  has  sold  his  property,  sent  it 
to  a  distant  place  to  the  manufacturing  es- 
tablishment of  the  purchaser,  has  received 
no  payment,  and  has  parted  with  the  pos- 
session of  the  property  and  that  means  of 
securing  payment,  must  rely  upon  the  re- 
sponsibility of  the  purchaser,  and  his  dis- 
position to  pay  for  the  jjrcjpertv.  If  this  is 
not  satisfactory  to  the  jjurchaser,  he  should 
have  made  a  different  bargain.  He  could 
have  done  as  he  was  advised  by  the  plaintiff's 
assignor,  viz.,  have  appointed  a  hide  broker 
or  expert  to  have  made  the  selection.  Then 
both  the  buyer  and  the  seller  would  have 
been  bound  by  the  selection  made, — the  buyer 
to  accept  and  pay  for,  and  the  seller  to  de- 
liver. J5ut  the  defendant  chose  to  make  the 
seller  Ins  aj;ent  to  select,  and  he  must  abide 
by  the  selection  made  for  him,  especially  in 
the  absence  ot  any  evidence  that  the  hides 
were  not  just  what  he  ordered.  Indeed,  the 
defendant  did  not  base  his  refusal  to  pay  U))- 
on  any  allegation,  much  less  upon  any  [iroof 
that  the  hides  were  not  in  accordance  witli 
his  specification  and  order,  but  upon  the  sim- 
ple pretext  that  he  wanted  to  examine  them, 
and  that,  too,  after  he  had  authorized  the 
plaintiff's  assignor  to  select  the  hides  for  him. 
Wiiile  the  trial  court  might,  and  I  think 
.5hould,  have  found  as  above  indicated,  it  has 
found  substantially  in  that  way,  but  with  the 
qualification  that  the  plaintiff's  assignor 
gave  the  defendant  the  right  to  examine  the 
hides  before  accepting  them.     This  light  the 


learned  trial  court  bases  upon  expressions  in 
tlie  letters  of  October  27th  and  November  4th, 
and  which,  I  think,  were  subseijucnt  to  the 
correspondence  which  constitutes  the  con- 
tract between  the  parties.  The  examination 
referred  to  in  those  letters  is  not  to  be  an  ex- 
amination which  should  determine  whether 
tlie  defendant  shouM  receive  these  500  hides, 
but  the  examination  of  this  lot  was  to  deter- 
mine whether  he  was  so  well  suited  with  this 
lot  that  he  would  make  further  anil  larger  or- 
ders; besides,  it  seems  very  plain  that  the 
plaintiff's  assignor  did  not  mean  to  change 
the  terms  of  the  contract  for  this  sliipment, 
but  at  all  times,  and  upon  the  stand  as  a  wit- 
ness upon  the  trial,  he  insisted  that  tlie  de- 
fendant was  not  entitled  as  a  matter  of  right 
to  an  examination  before  an  acceptance  of  the 
hides.  There  was  no  consideration  for  such 
change  of  contract,  or  "waiver"  as  it  is  called 
by  tlie  trial  court,  and  it  therefore  imposed  no 
new  or  different  obligation  upon  tlie  philntiff 
than  existed  under  the  former  contract.  Hut 
the  trial  conrtmadealiiuling  that  the  contract 
was  so  modilied  as  to  allow  the  defendant  an 
examination  before  acceptance.  The  trial 
court  also  found  that  plaintiff's  assignor  had 
offered  to  defendant  an  opportunity  to  exam- 
ine the  hides,  outsideof  the  car  in  which  they 
were  contained,  upon  the  platform  or  in  the 
store-liouse;  that  such  opportunity  was  a  just 
and  reasonable  one;  and  that  defendant  re- 
fused, and  thus  defendant  broke  the  contract; 
and  that  the  plaintiff's  assignor  was  justified 
in  the  course  he  pursued  thereafter.  I  can 
See  no  error  in  this  tiiuling  or  conclusion.  It 
would  afford  a  fair  and  reasonable  opportu- 
nity for  llie  defendant  to  determine  the  quality 
of  the  hides.  None  could  be  better  for  the 
purpose  of  an  examination,  unless  they  should 
be  taken  to  defendant's  tannery  and  there  be 
worked  as  well  as  examined.  Of  course  bus- 
iness of  this  kind  could  not  be  practically  oi 
succ;  ssfnlly  carried  on  in  this  way;  certainly 
not  to  the  vendor  of  hides  living  hundreds,  if 
not  thousan  Is,  of  miles  away,  and  receiving 
many,  if  not  the  most,  of  tlie  hides  he  sells 
from  dealers  and  butchersliving  and  carrying 
on  business  as  many  more  miles  from  the 
plaintiff's  assignor. 

We  come  now  to  not  ice  the  exceptions  taken 
by  the  defendant.  These  were  first  as  to  the 
proof  of  a  custom  existing  in  Chicago  forthe 
seller  of  liides  to  ship  and  consign  to  himself 
at  the  ]>lace  of  destination,  with  directions  to 
the  carrier  to  deliver  to  the  vendee  upon  his 
accepting  a  draft  for  the  purchase  price.  We 
do  not  think  that  the  jiroof  of  such  custom 
could  have  harmed  or  prejudiced  the  defend- 
ant in  any  way.  Whether  the  contract  was 
to  acce]it  the  hides,  and  sign  a  draft  for  pay- 
ment upon  notice  of  their  arrival  by  the  car- 
rier, or  to  do  so  after  reasonable  opportunity 
to  examine  the  hides  and  refusal  by  the  vendor 
to  avail  himself  of  such  o|iporl unity,  can  make 
no  difference  with  the  legal  rights  and  obli- 
gations of  the  parties  to  tlie  contract.  It  was 
the  clear  right  of  the  seller,  when  no  other 
mode  or  time  for  payment  is  provided  in  the 


SAWVKll   c.  DKAN. 


(•)9:3 


contract,  to  retain  possession  of  his  proi)erty 
until  he  was  paid  for  it.  Tlio  defenilanl  has 
no  ri<;lit  or  ground  for  complaint  that  the 
piaintilf  insists  upon  such  ri<?lit.  Tlic  iltd'cnd- 
ant  in  this  case  orilercd  hides  to  be  sent  to 
Owcgo.  Hides  such  as  he  vv.mted  and  had 
ordered  weie  lirniiirht  :ind  tendered  to  him 
at  the  railroad  station  at  Owego,  one  <if  the 
usual  routes  and  points  of  shipment.  No 
other  route  or  pmul  iiad  heen  indicated  by  the 
defendant  when  tiie  liiiies  were  shijiped.  We 
do  not  perceive  that  the  defendant's  rights 
have  been  interfered  with,  or  what  just 
ground  of  complaint  or  of  refusal  to  accept 
thegoods  the  defendant  would  have  had  if  llie 
goods  had  arrived  in  the  personal  c;ue  or  pos- 
se.ssiou  of  the  seller,  and  without  any  bill  of 
lulling  or  shipping  bill  wliatsoever.  The  sell- 
er has  the  right  to  retain  his  possession  until 
he  has  received,  or  is  tendered,  payment  of  the 
price.  This  mode  of  doing  business  is  entire 
ly  legitimate,  and  i?i  many  cases  it  istheoiih 
way  of  securing  payment.  Hank  v.  PfeilTer, 
22  Hun,  i'H.  It  certainly  would  not  seem  to 
beany  just  ground  of  complaint,  upon  the  part 
of  the  defendant  that  the  plaintilT,  instead  of 
delivering  the  goods  to  the  vendee  at  (Chicago 
by  an  absolute  consignment  to  him,  as  he  was 
authorized  to  have  done  under  the  contract 
m  question,  took  the  risk  upon  himself  of  the 
payment  of  the  transportation,  and  of  their  ar- 
rival in  good  order  and  condition  at  thei)lace 
where  the  defendant  desired  to  use  and  man- 
ufacture them  into  leather.  Iliggins  v.  Mur- 
ray, supra.  Our  conclusion  is  that  this  proof 
of  custom  did  not  change  or  affect  the  legal 
relations  of  the  parties  to  the  contract  in  ques- 
tion, and  was  not  at  all  necessary  or  service- 
able in  the  decision  of  the  question  in  this 
case.  Whether  this  proof  of  custom  was  in 
or  out  of  the  case,  the  decision  must  have  been 
the  same,  and  so  the  defendant  has  no  just 
ground  of  complaint,  or  for  another  trial  with- 
out such  proof. 

Wo  do  not  think  there  was  any  error  in  al- 
lowing proof  of  the  acts  of  ISond,  plaintitf's 
agent,  and  Upton,  defendant's  agent.  There 
can  bo  no  doubt  of  their  agencies  upon  the 
evidence  in  the  case,  outside  of  any  state- 
ments made  by  the  alleged  agent  that  he 
was  agent.  IJeing  the  agents  of  the  parties, 
Iheir  acts  and  statements,  whihi  performing 
acts  for  their  piincipals,  in  the  offers  and  ef- 
forts for  an  opportunity  to  examine  the  hides, 
and  to  obviate  objections  and  reconcile  dilTer- 
ences  between  the  parties,  were  competent 
evidence. 

The  defendant,  upon  the  argument,  dis- 
cusses another  kind  of  evidence  received  up- 
on the  trial,  viz.,  the  letters  and  telegrams 
sent  by  the  seller  to  the  purchaser,  and  tlie 
Qndiugs  which  may  in  a  measure  be  based 
upon  such  evidence.  An  effectual  answer 
to  that  argument  is  that  this  evidence  was 


received  witliout  objection;  and  the  defend- 
ant, when  examined  as  a  witness  after  this 
evidence  was  thus  received,  does  not  deny 
that  lie  received  them;  and  1  think,  when  a 
response  iloes  come  from  the  defendant  touch- 
ing the  points  in  the  letters  and  telegrams,  it 
;3  pretty  plain  that  they  were  received  by  the 
defendant. 

Xordo  I  think  that  the  letters  introducing 
Hond,  agent  for  plaintilT's  ;tssignor,  to,  and 
informing,  defendant's  agi-nt,  Upton,  and  .Mr. 
Piatt,  casii.er,  and  to  the  railroad  agent,  ob- 
jectionable. They  proved  but  the  authority 
of  iSond  to  act.  and  could  not  until  he  had 
acted  alfect  the  rights  of  the  parties;  and  the 
elfect  of  his  action  would  depend  upon  his  au- 
thority, and  hence  the  necessity  for  proving 
his  authority. 

1  think  we  have  examined,  closely  and 
carefidly,  the  lengthy  and  exhaustive  points 
furnished  by  the  defendant's  counsel  upon 
the  argument;  and  I  do  not  perceive  any 
substantial  error  on  account  of  which  there 
should  be  a  new  trial  granted  in  this  case. 
The  case  seems  to  have  been  thoroughly  tried 
by  the  court  without  a  jury,  the  jury  having 
been  waived  at  the  close  of  the  evidence,  and 
a  consent  given  that  the  case  be  decided  by 
the  court.  There  were  numerous  incidental 
and  unimportant  questions  raised  and  ruled 
upon  during  the  trial,  and  exceptions  taken 
in  some  instances,  and  in  others  not  taken. 
I  refer  to  the  depositions  of  witnesses  taken 
under  commission,  and  the  rejection  of  an- 
swers or  portions  of  answers,  and  the  ques- 
tion of  variance  and  ameudmeut;  but  they 
do  not  seem  to  me  to  be  important,  and  many 
of  them  are  clearly  within  the  discretion  of 
the  court.  Such  were  the  statements  made 
to  witnesses  in  identifying  the  hides  sold  in 
Chicago.  1  do  not  understand  from  the  de- 
fendant's points  that  any  serious  contention 
is  made  as  to  the  right  of  the  plaintilT  to  re- 
call the  hides,  and  to  sell  them  at  Chi  ago, 
the  great  hide  market  of  the  country,  after 
notice  to  the  defendants  that  that  course 
would  be  pursued  if  the  defendant  refused  to 
accept  and  pay  for  the  hides  in  accordance 
witli  the  terms  of  the  contract.  The  plaintiff, 
in  the  (ontingency  just  stated,  had  the  right 
to  ])ursue  this  course. 

1  think  the  sale  was  properly  made  by  the 
plaintiff  at  Chicago,  and  that  he  adopted  the 
best  means  to  got  the  highest  price  and  occa- 
sion defendant  the  least  loss,  and  that  the 
sale,  etc.,  was  conducted  in  entire  good  faith 
by  the  plaintiff's  assignor,  and  that  the 
amount  of  the  recovery  did  not  exceed  the 
plaintiff's  right  or  the  defendant's  obligation 
after  he  had  broken  the  contract.  Uustan  v. 
McAndrew,  44  X.  Y.  72,  74,  79. 

We  think  judgment  should  be  aflirmed, 
with  costs.  All  concur,  except  Follktt, 
C.  J.,  not  sitting. 


SCOTT  t>.  LAUMAN. 


695 


SCOTT  V.  LAUMAN. 

(104  Pa.  St.  593.) 

Supreme  Court  of  Pennsylvania.    Jan.  7,  1884. 

Feitrned  iHsue  between  George  R.  Laii- 
man,  udminiHtrntor  of  Williiiin  Scott,  ile- 
cenHcd,  ns  jiluintiff,  and  Aiidrow  Scott,  an 
defendant,  to  dctcnniDO  the  rialit  to  a 
certain  fund.  .JudKnient  for  jjlaintiff,  and 
defendant  hriiifi"  b'T"!'.     .Mlirnied. 

Dei'eaHed,  Williuni  Scott,  had  a  certifi- 
cate of  depoHit  in  a  l)ank,  on  whicli  certill- 
cate  in  liiw  laHt  siclincHH  lie  wrote  an  an- 
Hidmnent  to  defendant  of  part  of  tlie  <le- 
poHit.  Ho  delivered  the  certificate  ko  en- 
dorHed  to  IiIh  attorney,  telling  him  to 
"talceit  wltli  him,  and  put  it  in  his  wafe; 
tliat  it  was  for  Andrew  Scott ;"  and  the 
attorney  retained  tlie  certificate  in  liiH 
oflice  tiil  tlic  death  of  deceased,  wlien  he 
banded  it  to  defcMilant. 

Uefore  Mi:i{('f;i{.  C.  J.,  and  (JOHDON, 
PAXSON,  TRUNKEY,  STERRETT  and 
CLARK,  JJ.    GREEN,  J.,  absent. 

A.    M.    Brown    and    Jolin    S.    Ferguson, 


for  plaintiff  in  error.     .1.  Nf.  Stoner,  for  de- 
fendant in  error. 

PER  CURIAM.— To  constitute  a  vnlia 
gift,  tliere  must  bo  a  delivery  of  the  (irop- 
erty  to  the  donee,  or  to  some  person  for 
his  use.  A  gift  is  a  contract  executed.  The 
act  of  execution  is  the  delivery  of  posseH- 
sion.  Without  delivery,  it  Is  only  a  con- 
tract to  give,  not  bindlni;  for  want  of 
consideration:  CampbeH's  Estate,  7  Rarr 
100;  Withers  v.  Weaver,  10  Id.  .TJl  ;  Kidder 
V.  Kidder,  9  Casey  L'fis;  Trougii's  Estate, 
25  P.  F.  S.  115;  Zimmerman  v.  Streeper, 
Id.  147. 

In  the  present  cose  tliere  was  no  deliv- 
ery to  the  tionee,  nor  to  any  person  for 
his  use.  The  donee  placed  in  the  hands  o( 
his  own  attorney  the  certificate  of  de- 
posit, and  the  order  to  jiay  a  i>art  of  the 
sum  therein  sjiecitied  to  Ihedonee.  lie  did 
not  instruct  his  attorney  to  deliver  It  to 
the  donee.  The  latter  had  no  knowledge 
of  any  act  of  the  donor  relating  to  the  In- 
tended gift.  Without  delivery  the  whole 
evidence  was  insufhcient  to  support  the 
paper  as  an  executed  contract. 

Judgment  atlirmed. 


SCOTT  c.  WELLS. 


697 


SCOTT  V.  WELLS. 

(6  Watts  &  S.  :)57.) 

Supremo  Court  of  Pennsylvania.    Dec,  1843. 

AsHuniiiHit  hy  Daniel  WcHh  aKDliiHt  HukIi 
Sciitt  for  the  value  of  n  riift  of  boarrlH 
Holil  and  (k'livcnMl  to  (Icfcmlaiit.  .lu'ltc- 
niciit  for  [ilaiiitiff,  and  dufi/ndant  appeals. 
.Mlirtncd. 

L.  \.  Siott,  for  plaintiff  in  error.  J.  .\L 
Read,  contra. 

GIBSON.  C.  J.— The  ninterial  queHtion 
is,  whether  tlie  property  paHHed  hy  the 
Hflle  and  delivery  in  the  lirHt  instance. 
Tlie  faets  were  not  eonteHted.  KIdred,  the 
vendorV  a^ent,  sold  a  raft  of  hoanls  to 
TfiHtin,  the  pnrchaser'K  at;''nt,  at  a  eer- 
tain  rate  the  thousand  feet,  and  delivered 
it  to  a  person  employed  by  tin?  latter  to 
take  it,  at  the  purchaser's  expense  and 
risk,  from  Kichiiiond  on  the  Delaware  to 
a  place  on  the  Schuylkill,  where  it  was 
afterwards  moored.  Thedeliverv  was  un- 
conditional, pursuant  to  the  contract  and 
complete:  wliy  then  did  it  not  pass  the 
property  and  put  it  at  the  [lurchaser's 
risk?  Itecause,  say  tlie  purchaser's  coun- 
sel, the  nnmher  of  feet  cont.-iined,  or  the 
suui  total  of  the  price,  was  not  settled  by 
the  terms  of  the  contract;  and  the  c<»nse- 
qiicnce  attempted  is,  that  the  sale  was  im- 
perfect in  its  tneml)ers.  Had  there  been 
no  delivery,  or  a  con<litioiial  one.  the  pur- 
chaser would  not  perhaps  have  lii'ei! 
bound  till  the  number  of  feet  and  entire 
price  had  been  ascertained;  but  the  par- 
ties evinced,  by  taking  the  last  step,  that 
notliln;^  rem.nined  to  be  done  in  order  to 
perfect  the  contract.  If  I  deliver  a  chattel 
in  execution  of  an  aRreenient  to  sell  it  in 
lerniH  to  be  lixed  ^ubsetiuently,  tin  own- 
ership and  risk  of  the  pi-operty  doubtless 
remain  with  nie  in  the  mean  time;  but 
Huch  delivery  is  conditional,  and  after  an 
ineffectual  effort  to  perfect  the  sale,  no  de- 
livery nt  all.  On  the  other  hand,  it  is  n 
rule,  perhaps  without  an  exception,  that 
whenever  then;  has  been  an  absolute  de- 
livery pursuant  to  n  bargain  perfect  in  its 
members,  or  capalile  of  beiuj;  made  ho  by 
reference  to  something;  else  than  supple- 
mental conditions  by  the  parties  or  an 
arbiter  appointed  by  them,  the  owner- 
ship of  tile  property  is  vested  by  it.  I 
;:rant  that  a  sale  may  be  fatally  defective 
In  its  members ;  and  that,  by  the  civil  as 
well  as  the  common  law,  the  s|iecifica- 
tion  of  a  price  is  necessary  to  constitute  it. 
Itut  there  is  abundant  authority  to  show 
that  it  may  be  supplied  by  arl>itrament, 
where  tlii're  is  a  provision  in  the  contract 
lor  it;  ■•ind  why  not  by  calculation  where 
the  contract  furnishes  a  basis  for  it? 
Surely  the  price  is  certain  eniMmli  when 
the  sum  of  it  can  be  olitained  bj  cou'.puta- 
tlon.  l'"or  instance,  I  sell  my  fat  l)ullocks 
grazinK  in  a  p.artlculnr  liehl,  at  so  much 
the  head;  there  are  tivo  of  them,  but  the 
number  is  not  specified  in  the  contract ; 
they  are  delivered  and  driven  away,  but 
rush  over  a  precipice  and  lirenk  their 
necks:  surely  it  will  not  be  sni<l  that  I  am 
to  lose  the  price  of  them,  because  the  a;i- 
Kreirate  amount  of  it  or  the  nunilier  was 
not  specitied  by  the  terms  of  the  bargain. 


Yet  the  principle  Ih  iicceHsarily  the  saine, 
whether  the  number  be  llveOr  (Ive  hun- 
dred, lint  I  would  be  bound  to  liear  the 
loss,  were  the  number,  however  InconHid- 
erabU'.  determinable  by  a  proresH  pro- 
viileil  in  the  contract.  I'ut  where  no  such 
process  is  provided,  may  not  a  (nrmer  i>ell 
his  Krowin«  croi)  by  the  bushel,  so  as  to 
chanjte  the  ownership  of  it  in  the  mean 
lime,  without  lixiuK  the  iinantlty  by  an 
estimate  liefore  it  is  threshed?  To  sell  by 
tl'.e  bushel  anil  fix  the  c|uantity  would,  In 
effect,  be  to  sell  for  a  round  sum.  Mad,  In- 
deed the  atients  oi  the  parlies  before  UH 
made  it  a  condition  that  the  number  of 
feet  in  the  raft  shonlil  be  counted  <jr  esti- 
mate:; by  a  particular  person,  the  sale 
would  have  been  incomplete,  and  the 
jirupcrty  at  the  vendor's  risk  till  that  was 
done,  insomuch  that  hcmit^ht  havepassed 
the  title  to  another,  leavlni;  the  prior 
vendee  to  his  action  (or  u  tirench  o(  the 
contract;  but  by  the  barLcaIn  nctunlly 
made,  the  vendor  sold  just  so  many  feet 
as  the  raft  actually  <-ontained.  There  Is 
no  process  pointed  out  to  ascertain  the 
number;  and  why  roay  he  nut  recover  in 
[)roportion  to  the  number  ascertalneil  by 
the  evidence?  A  sale  is  Imperfect  only 
where  it  is  left  open  lor  the  adililion  ut 
terms  necessary  to  complete  It,  or  where 
it  is  delicient  in  some  imiispensable  int;rc- 
dient  which  cannot  be  supplied  from  an 
extrinsic  source.  I!ut  when  possession  is 
delivered  pursuant  to  a  contract  which 
contains  no  provision  foradditional  terras, 
the  parties  evince,  in  n  way  not  to  be  mis- 
taken, that  they  suppose  the  liari;ain  to 
be  eonsuminated.  Kven  where  actual 
possession  ha«  not  been  taken,  the  owner- 
ship and  risk  pass  by  the  contract,  if  noth- 
ing remains  to  be  done  to  the  property 
liy  the  veinlor.  such  as  counting,  mensur- 
iu>;,  weitfliinsi  or  lilliiiK  up.  to  ascertnin 
the  number,  iiuantity  or  weight.  Thus 
in  HuiX'j:  v.  Minett,  11  Kast.  L'lu,  turpen- 
tine had  been  sold  at  so  much  the  hundred 
wei;;ht  in  casks,  to  be  taken  at  the  marked 
quantity,  except  two  out  of  which  the 
others  were  to  be  tilled  up  before  delivery: 
and  those  two  were  sold  as  containing  In- 
delinile  quantities.  The  buyer  employcKl 
a  person  to  do  the  Iillin«,  but  before  be 
completed  it,  the  warehouse,  with  its  con- 
tents, was  destroyed  bv  lire;  and  it  was 
held  that  the  property  In  those  tilled  up 
had  passed  to  the  buyers,  btvause  noth- 
ing remaineil  to  be  done  to  them  by  the 
vendors.  Now  the  number  of  them,  like 
the  number  of  fti't  in  this  raft,  couUl  be 
ascertained  only  by  extrinsic  proof ;  and 
the  case,  therefore.  IS  in  point.  In  peifeot 
consistence  with  it  is  Za^ury  v.  Fiirnell,  i 
Camp.  -4(1,  in  wliicli  a  sale  of  i-oat  skins 
by  the  bale,  containing  a  specitied  num- 
ber, was  held  not  to  pass  the  property, 
because  the  usa«e  of  the  trade,  which  was 
consequently  a  part  of  the  contract,  made 
it  the  iliity  of  the  seller  to  count  the  skins 
in  each  bale  before  they  were  delivered. 
So  in  Hanson  v.  Meyer,  i\  Kast  CU.  an 
agreement  to  sell  all  the  vemlor's  starch 
in  a  particular  warehouse,  nt  so  much 
the  hunilretl  weitrhf.  the  number  of  hun- 
dreds to  be  ascertained  betore  delivery, 
did  not  presently  pass  the  ownership. 
I  There  Is  no  lack  of  authority  for   the  prln- 


G98 


SCOTT  V.  WELLS. 


ci|)le,  that  while  anythinp;  remnina  to  be 
iloiie  by  the  terms  of  the  contract,  to  ms- 
certain  the  entire  price,  the  property  re- 
mains at  tlie  risk  of  tlie  vencior;  anil  in 
Withers  v.  Lyss,  4  Camp.  287,  the  sale  of 
an  unascertained  quantity  of  rosin  in  a 
particular  warehouse,  nut  taken  away, 
hut  requested  to  be  kept  in  the  names  and 
at  the  disposal  of  the  purchasers,  was 
held  not  to  have  been  completely  deliv- 
ered;  but  it  certiiiidy  would  have  been 
otherwise  had  the  actual  custody  of  it 
been  chantjed.  In  that  event  the  sale 
would  have  been  perfect,  provided  the 
quantity  could  have  been  ascertained  by 
proof.  In  the  case  before  us,  the  raft  was 
actually  delivered;  and,  in  the  absence  of 
stipulation  to  the  contrary,  the  deliv- 
ery evinced  that  no  more  was  to  be  done 
by  the  seller.  Had  he  beeu  unable  to 
prove  the  number  of  feet  which  were  con- 
tained in  it,  the  sale  would  have  liecn 
incomplete,  and  he  could  not  have  recov- 
ered. As  he  was  able  to  satisfy  the  jury 
on  that  head,  we  must  take  it  that  the 
title  passerl  to  the  vendee.  Did  the  subse- 
quent transactions  reve«t  it? 

The  jury  were  left  to  judge  of  the  au- 
thority given  to  the  agents  as  a  question 
of  fact;  and  as  there  was  evidence  to 
found  a  conclusion  that  their  powers  were 
general,  we  must  treat  the  case  as  if  tlie 
fact  were  so;  and  we  must  say  that 
Eldred  was  competent,  with  the  assent  of 
the  other  party,  to  rescind  the  sale,  re- 
vest the  title,  and  make  a  conditional  sale 
to  the  same  vendee  on  terms  which  would 
leave  the  property  at  his  principal's  risk 
till  the  conditions  were  performed.  Was 
that  done?  It  certainly  was  not  intend- 
ed. When  he  first  met  .Scott,  the  pur- 
chaser, there  was  no  proposal  on  either 
side  to  recede  from  the  bargain  or  alter 
its  terms.  On  the  contrary,  .Scott  ex- 
pressly ratified  what  had  been  done,  and 
in  addition,  proposed  to  fix  the  number  of 
feet  by  an  estimate,  to  which  Eldred  ac- 
ceded, and  H  day  was  appointed  to  meet 
at  the  raft  and  make  it.  This  new  agree- 
ment, it  will  be  remarked,  was  not  only 
an  independent  but  a  conditional  one, and 
lieing  itself  imperfect,  was  of  no  foi'ce  be- 
ing unexecuted.  At  the  day  appointed, 
Eldred,  and  Tustin  came  and  met,  not 
Scott,  but  a  person  on  his  part,  who  said 
that  Scott  would  attend;  but  he  came 
not,  and  nothing  was  done.    Eldred  then 


sought  him,  found  him,  and  agreed  with 
him  to  have  the  raft  taken  out  of  the  wa- 
ter and  counted  at  a  day  named.  Eldred 
again  attended  and  Scott  did  not,  so  that 
the  second  agreement  turned  out  to  be 
as  abortive  as  the  first,  and  both  became 
as  inoperative  as  if  they  had  not  been 
made.  Moreover,  it  is  ol)vious  that 
neither  of  them  was  intended  to  impair  or 
alter  tlie  sale.  The  object,  a  distinct  and 
independent  one,  was  to  relieve  the  pur- 
chaser from  the  alternative  of  taking  the 
agent's  word  for  the  number  of  thH  feet, 
or  taking  the  trouble  to  ascertain  it  for 
himself.  To  hold  that  this  turned  the 
previous  absolute  sale  into  a  conditional 
one,  out  of  which  the  l)uyer  could  creep 
by  refusing  to  co-operate  in  what  was 
further  to  be  done,  and  thus  leave  the 
property  on  the  vendor's  hanils  at  a  place 
remote  from  the  market,  would  he  not 
only  unreasonable  but  inconsistent  with 
the  evident  purpose  of  the  parties. 

As  to  the  declarations  of  Scott,  on  the 
one  hand,  that  he  had  once  considered 
himself  the  owner  of  the  raft,  and  the  con- 
sent of  Eldred  to  remove  it  to  Harding's 
landing,  on  the  other,  it  is  enough  to  say 
that  these,  though  indicative  of  tlie  un- 
derstanding of  the  contract  by  the  par- 
ties, were  not  conclusive  of  the  title,  and 
that  they  were  properly  left  to  the  jury. 
What  is  conclusive  of  it,  however,  is  that 
the  terms  of  the  sale  were  unconditional 
and  BUfhciently  certain  to  pass  the  prop- 
erty in  the  first  instance;  that  there  was 
no  evidence  of  an  act  done  to  rescind  or 
alter  it,  and  that  when  the  subsetjuent 
negotiations  failed,  they  left  the  contract 
where  they  found  it. 

It  is  impossil)le  to  imagine  an  objection 
to  the  comi)etency  of  Eldred  as  a  witness. 
The  suggestion  is  that  he  may  have  in- 
curred liability  to  his  principal  for  negli- 
gence or  misfeasance,  from  which  he 
would  be  exonerated  by  a  recovery  in 
this  action;  the  answer  to  which  is,  that 
there  was  no  evidence  of  negligence  or 
misfeasance,  and  that,  in  the  atoence  of 
proof  of  it,  the  law  presumt's  against  it. 
Besides,  exposure  to  the  possibility  of  an 
action  is  one  of  those  contingent  interests 
which  go  only  to  credibility.  Such  were 
the  principles  that  ruled  a  similar  point 
in  M'Credy  v.  Navigation  Co.,  3  Whart. 
424,  and    which  rule  the  point  before  us. 

Judgment  affirmed. 


SCHANTOX  V.  CLAKK 


SCRANTON  V.  CLARK. 

(39  N.  Y.  220.) 

Court  of  Appeals  of  New  York,  March  Term, 
l^tiS. 

Appi'"'  from  order  rcvprsiiitr  a  judgment 
for  (lefi'iiilaiit  and  iirdcrin^  a  new  trial. 

Action  on  a  promissory  note. 

L.  S.  Cliutlield,  for  appellant.  JanicH 
Emott,  for  reHpoiidentH. 

r.ACON,  J  .  It  the  chnrKe  of  the  li>iirnc<l 
jiidKc  upon  tlic  trial  lind  Htoppi'd  iit  the 
(irst  proposition  ennnelated  Uy  liiin,  it  is 
poHHlhle  the  verdic-t  nilKht  he  upheld,  he- 
cause  it  may  perhaps  he  said  ilmt  there  is 
some  evidence  from  which  th(!  juiy  iniKht 
possibly  have  found  that  .leronic  was  the 
owner  of  the  note  in  iN^s,  when  it  is 
ciHiihed  that  he  sold  it  to  Ueliind.  'I'he 
uncontradicted  and  indeeil  overwheliiiinn 
evidence  is  that  in  Decen.her,  is.")",  the 
note  in  controversy  was  sold  and  deliv- 
ered to  Kdwin  C.  Litchfield,  who  held  it 
as  ownei  from  that  time  until  August  or 
Septemher,  IMiO,  when  he  sold  ancl  trans- 
ferred it  to  Jerome,  who  soon  after  dis- 
posed of  it  to  Klislia  15.  Lilchlield,  from 
whom  the  plaintiffs  derive  their  title.  It 
is  quite  likely  that  in  the  transaction  be- 
tween .leronie  and  Leland,  which  occurred 
in  the  fall  of  lNr)>S,  both  parties  supposed 
that  this  note  wasainonfi  the  humlle  of 
securities  that  were  traded  off  for  the  wild 
land,  liut  it  is  as  nearly  certain,  as  it  can 
well  l)e  rendered  by  testimony,  that 
.lerome  had  not  then  either  the  possession 
or  ownership  of  the  note,  and  it  can  hard- 
ly lie  claimed  that  the  jur.v,  if  that  naked 
|')roposition  had  been  left  to  them  upon 
the  testimony,  could  have  found  any  such 
tact.  The  utnxist  that  can  he  insisted  the 
testimony  conduces  to  prove  is,  it  seems 
to  me,  that  Jerome  agreed  to  sell  this 
note,  with  others,  in  exchanKP  for  the 
lands;  that  the  other  notes  were  handed 
to  the  clerk  of  Jerome,  or  to  Jerome  him- 
self, who  held  them  as  the  dei)ository  of 
Lel.'ind,  but  that  this  note  was  not  anions 
the  number  and  was  never  in  the  posses- 
sion of  Leland  or  tuat  of  his  ajient. 

Ass'imin;;  this  to  be  the  state  of  the 
case,  the  jury  were  instructed,  that  if  they 
believed  that  Jerome  sold,  that  is, in  effect 
asreed  to  sell,  this  note  to  Leland,  al- 
thouirh  he  was  not  the  owner  at  the  time 
of  this  aL:re(in.'nt.  yet  as  he  afterward  be- 
came the  owner,  his  a;j:reenient  implied  a 
warranty  of  title,  and  this  subseciucntly- 
ac<)uired"title  inured  to  the  benellt  of  Le- 
land, his  vmiilee,  am]  payment  to  him  ex- 
tiiiKUishes  the  note.  I'pon  tlii-i  proposi- 
tion the  jur.v  were  authorized  to  lind,  as 
they  did,  a  verdict  for  the  defendant ;  and 
the  (piestion  is,  whether  the  proposition 
is  sound  Inlaw;  in  other  words,  is  there 
an  implied  warranty  of  title  in  the  sale  of 
a  chattel  where  the  owner  is  not  in  pos- 
session ? 

It  is  to  b»  assumeil  that  there  was  no 
express  alllrmat ion  of  title  l)y  .lerome  to 
Leland.  There  was,  on  the  one  hand,  a 
sale  of  Willi  lantls,  ami  on  the  other,  a  sale 
and  transfer  by  delivering  of  certain  notes, 
and  an  airreement  to  sell  another  note, 
t)ut   of    which    no   assiunnient  or  delivery 


waH  maile.  and  no  written  trunsfer  exe- 
cuteil  [inrportitiK  to  convey  a  present  In- 
tert  St,  or  one  in  fnturo. 

On  this  precise  iiuestion,  as  to  the  impli- 
cation of  a  warranty  on  the  sale  of  a 
chattel  ncjt  In  iiossesslon  i>f  the  vi-ndor  at 
the  time,  Ciiancelliir  Kent,  in  his  Com- 
nientarles,  sl;ites  the  doctrine,  without 
i|ualilieation.  to  be.  that  the  ruieofraviat 
emptor  applies,  iinil  the  party  bu.\s  at  hU 
r)eril.  •_'  Com.  47n.  lie  lulds!  that  If  the 
seller  has  posseHsion  of  the  article,  and 
sells  it  as  his  own.  an<l  not  as  airent  for 
another,  anil  for  a  fair  [irlce,  he  is  under- 
stood to  warrant  the  title.  In  support  of 
the  rule  as  thus  stated  he  citen  two  or 
three  old  cases  In  the  KukHsIi  biKikrt.  The 
first  m  the  remark  of  ■I'anlield,  Chief  Bar- 
on I'in  Cr').  Jac.  r.t7>),  'o  the  effe<'t  that  If 
one  sells  lands,  whereof  another  is  in  poH- 
sessii'U,  or  a  horse,  whereof  another  Im 
possessed,  without  covenant  or  warranty 
for  the  enjoyment,  it  is  at  the  peril  of  him 
wlio  buys,  and  it  is  not  reason  that  he 
should  have  an  action  at  the  law,  where 
he  dill  not  provide  for  himsi-lf.  In  Medina 
V.  Slouuhton,  1  Salk.  L'lo.  Ilult.  Ch.  J.,  de- 
cided that  where  one  having;  possession  of 
a  chattel  sells  it,  the  afhrmation  that  It  iR 
his  amounts  to  n  warranty,  biit  aliter 
where  the  seller  is  out  of  posHesslon,  for 
there  may  be  room  to  (juestion  tlie  Heller's 
title,  and  caveat  emptor,  in  such  case,  to 
have  either  an  express  warrantv.  or  a 
UimmI  title.  These  canes  RPein  to  have  set- 
tled the  law  in  Knuland.  in  coiiforinlt.v 
with  ihe  iirinciple  laid  down  by  Kent, 
and  we  have  been  cited  to  no  authority 
doubtia^or  (juestioidriK  them,  unless  such 
an  inference  may  arise  from  the  remark 
of  I5nller,  in  I'asley  v.  Freeman.  S  T.  H. 
.">s,  which  however  is  merely  to  the  effift 
that  if  tlie  seller  allirms  the  chattel  not  in 
his  p<)ssession  to  be  his.  he  is  bound  to 
answer  for  the  title  ;  for  in  such  case  the 
vendee  has  nothini:  else  to  rely  upon. 
This  places  the  liability  upon  the  ground 
of  an  allirmation,  BinonntinK  to  a  war- 
ranty, and  is  not  at  all  inconsistent  with 
the  principle  enunciated  in  thetwoeaseH 
on  which  the  rule  as  slated  by  Kent  Ih 
founded. 

In  this  state  the  same  iim-stion  waa 
presented,  and  is  very  fully  discussed  both 
on  principle  and  authority  in  the  case  of 
.McCoy  V.  .\rtclier,  :i  I'.arb.  :!'..':i.  The  effect 
uponthe  iiuestion  of  warranty  of  title  up- 
on a  sale  where  the  property  is  in  or  out 
of  till-  Dossession  of  the  vendor  Is  there 
considered,  and  the  propositions  are  es- 
taldished  that  possession  by  a  venilor  of 
chattels  is  eiiuivalent  to  an  allirniation 
of  title,  and  in  such  case  the  vendnrls  held 
to  nr)  implied  warranty  of  title,  even 
althouirh  nolhiiiy:  be  said  on  the  subject 
between  the  parlies.  Hut  if  Ihe  property 
sold  be  at  the  time  of  Ihe  sale  in  the  pos- 
session of  a  third  party,  and  there  be  no 
alflrnnition  or  assertion  of  ownership,  no 
warranty  of  title  will  he  Implied.  In 
those  circumstances.  In  order  to  attach 
anv  liability  to  the  vendor  upon  n  sale, 
there  must  be  an  ailirmntlon  which  will 
amount  to  a  warrnnly  of  the  title. 

The  principle  establlslietl    by  this  cane  !• 

'  Roswcl  V.  Vaughan. 


702 


SCRANTOX   0.  CLARK. 


followed  aud  approved  in  Edifk  v.  Crini, 
10  Barb.  445,  where  the  court  cite  the  case 
in  Oo.  Jac.  1!I7,  and  say  t lie  general  rule 
is  that  the  vendor  of  a  chattel  impliedly 
warrants  the  title,  yet  wlien  the  chattel  is 
not  In  the  vendor's  posae^'sion,blIt  in  that 
of  another,  tliis  rule  does  not  prevail.  In 
Hopkins  v.  Grinnell,  28  Barb.  533,  where 
the  sain3  point  arose,  the  decision  was  to 
the  same  effect,  and  the  proposition  in  the 
terms  laid  down  by  Kent,  was  reiterated 
and  upproved. 

It  i.i  not  important  to  cite  authorities 
from  other  states,  several  of  which  are 
quoted  in  tlieoi)inion  of  the  court  in  the 
case  of  McCoy  v.  .\rtcher,  and  are  to  the 
same  effect.  These  cases  in  our  own 
courts  settle  the  doctrine  with  us,  from 
which  there  has  been  no  dissent  from  the 
earliest  case  to  the  present  time.  The 
effect  of  thene  decisions  is  so'ight  to  be 
evaded  by  the  assertion  of  the  defendant's 
counsel,  that  in  these  cases  the  vendor 
never  had  possession  of  the  thing  sold, 
either  before  or  after  the  sale,  while  here 
Jerome  not  only  had  possession  before  he 
sold,  but  afterward.  It  is  not  perceived 
how  this  fact,  conceding  it  to  exist,  can 
vary  the  principle.  The  counsel,  in  this 
part  of  his  argument,  also  insists  that 
Jerome  was  the  owner,  and  had  i>osses- 
aton  of  the  note  when  he  sold.  If  this 
were  conceded,  the  argument  would  be  at 
an  end,  and  the  proposition  of  law  we 
have  been  discussing  would  be  immaterial, 
lint  it  is  to  be  remarked  that  the  weight 
of  evidence  is  entirely  otherwise,  and  in 
the  pro[)ositiou  laid  down  by  the  court 
in  this  case,  the  judge  assumes  that  Jer- 
ome was  not  the  owner  of  the  note  at  the 
time  of  the  alleged  sale  (as  he  undoubted- 


ly was  not  in  fact),  but  that  it  was  his 
subsequent  acquisition  of  the  title  that 
inured  to  the  benetit  of  the  vendee  so  that 
ho  could  hold  the  vendor  upon  an  implied 
warranty,  vvliich  as  we  have  seen, the  law 
does  not  create,  but  expressly  repudiates. 
In  the  case  of  McCoy  v.  Artcher,  supra, 
the  note,  which  was  the  subject  of  thesale, 
was  potentially  in  the  possession  of  the 
defendants,  being  held  by  an  agent,  for 
their  l)enetit,some  time  prior  to  the  trans- 
action, by  which  they  were  sought  to  be 
charged. 

It  is  said  l>y  the  defendants'  counsel, 
that  the  certificate  of  Jerome  to  Clark  es- 
tops hira  from  making  any  claim  on  the 
note  against  Clark,  and  this  estoppel  fol- 
lows the  note  into  the  hands  of  those  de- 
riving title  from  or  through  Jerome.  It 
is  quite  questionable  whether  this  certifi- 
cate was  properly  admitted  hi  evidence, 
tlie  effect  being,  if  it  had  any,  to  iuipeacli 
the  title  to  a  chose  in  action  in  the  hands 
of  another  party,  after  Jerome  had  [lart- 
ed  with  it.  But  it  could  not  operate  as  an 
estoppel,  for  the  simiile  and  obvious  rea- 
son that  it  was  given  long  after  the  time 
that  Clark  had  dealt  with  Jerome,  and 
had  profpssedlj-  bought  the  note,  and  he 
was  induced  to  no  action  whatever  upon 
the  strength  of  that  certificate,  or  of  any 
representation  made  in  it.  It  lacks  all  the 
elements  of  a  legal  or  equitable  estoppel, 
and  should  properly  have  had  no  influence 
in  the  case. 

I  think  the  judgment  of  the  general  term 
should  be  affirmed,  and  judgment  in  ac- 
cordance with  the  stipulation  rendered  for 
the  plaintiffs  for  the  amount  of  the  note 
and  interest,  with  costs. 

All  concur  except  MASON,  J. 


SCUDDEU  P    WOKSTKH. 


705 


SCUDDEU  V.  WORSTER  et  al. 

(11  Cusb.  573.) 

Sii]in'iiie  .TmiicinI   Court  of  MaRsacIiusetta. 
SuftolU.    Nov.  Term,  1853. 

TliiK  wiiH  nil  nution  «if  reiilcvin.  for  IfiO 
hunclM  of  pork,  to  which  the  <l<-ffiiiJiintH 
pltfiiilccl  only  the  ut'iu-rnl  isHue.  It  wkh 
Buhiiiilteil  to  this  court  on  an  iifjrefd 
8tnt(>iiieiit  of  facta. 

H.  A.  ScikIcUt,  for  pluiiitiff.  \V.  U.  Ruh- 
8ell,  for  Ueft'iiilaiils. 

DKWICY.  J.  TlilHcnHeis  Hiib:;)itti-(1  up- 
on an  iiKi'i'fd  HtatcMDi'iit  of  facts,  upon 
which  the  coui't  are  to  enter  ju<l;;tneMt. 
Tlie  lirst  (luestion  presented,  that  of 
proper  plefulinjrH  anil  wpecificaticin  of  de- 
fence,  would  have  lieen  more  properly 
raised,  liail  the  case  taken  the  ordinary 
course  of  n  trial  hy  jury.  l!y  niakin;;  a 
Htatenienl  of  facts  and  asking  the  judjr- 
nient  of  this  conrt  thereon,  the  narticH  are 
understood  to  have  waived  all  (luestions 
an  to  the  formal  pleadiiiKs.  unless  those 
questions  are  in  direct  terms  reserved. 
Kor  oiivious  reasons,  this  ought  to  he  so. 
OH  the  opportunities  for  amendments  of 
the  pleadings  would  he  much  jii-eater,  an<l 
thc.v  could  be  more  conveniently  allowed 
in  the  earlier  stages  of  tlie  case.  The  pre- 
rise  objection  taken  by  the  idniniiff  as  to 
this  matter  is,  that  the  defendants  liy 
pleading  the  general  issue  without  a  spcci- 
ticalion,  nllefrinjj  the  property  in  tliem- 
Helves  in  the  articles  replevied,  admit  the 
propert.v  in  these  articles  to  be  in  the 
plaintiff,  and  deny  only  the  taking  of  the 
Name. 

If  this  were  HO,  yet  in  a  case  when  the 
riKht  of  pr-operty  was  in  fact  the  real  mat- 
ter in  controveisy,  and  the  defendant  had 
throuKli  siinie  misappreliensioii  omitted 
to  set  forth  his  claim  of  i-ight  of  property, 
nil  aiiieiidiiient  ouglit  to  be  allowed  to 
that  effect,  upim  proper  terms,  if  on  trial 
l>elon'  a  jury,  or  tiie  fac*^s  discliaiv-ed  and 
the  case  sent  to  trial,  if  the  case  were  siib- 
niitted  to  the  court  upon  an  agreed  state- 
ment of  facts,  if  it  were  necessary  to  si-- 
cure  the  deteiidanl  a  hearing  upon  the 
merits  of  the  <'ase.  I!iit  in  the  present 
ease  we  think  the  riglit  of  the  defendants 
to  as.sert  theii'  property  in  the  articles  re- 
plevied, is  not  concluded  by  the  form  of 
the  pleadings;  (irst.for  the  reason  already 
n«sigiied,  that  the  parties  have  made  a 
case  upon  a  statement  of  facts,  ami  thus 
waiviMl  the  ol>jeciion  as  to  the  form  of  the 
pleadings;  and  secondly,  liecause  under 
our  statute  of  I.SIIG,  c.  1.'7:!,  aliolishing  s[)e. 
fhd  i>li'ading,  and  allowing  no  other  plea 
than  the  general  issue,  that  was  properly 
plea<led,  and  no  call  having  been  made  for 
any  specitication  of  defence,  and  no  objec- 
tion taken  to  its  omission,  until  the  argu- 
ment was  heard  here  upon  tlie  statement 
of  facts,  it  was  too  l.'ite  to  raise  the  point. 
Miller  v.  !^U>eper,  4  Cusli.  ;!t;!).  .Nor  can  the 
plaintiff  aid  Ids  case  by  reference  to  his 
writ  commanding  the  idlii-er  to  replevy 
I.'pO  barrels  of  pork,  "the  property  of  the 
phiinllff."  and  the  return  indorsed  thereon 
by  the  ollicer  that  "  he  had  replevied  the 
within  nrentioni'd  property."  \n  oltlcer's 
LAW  t<Ai-b;s — 45 


return,  however  conclnHlvo  as  to  the  serv- 
ice of  process,  settles  nothing  of  the  right 
of  propert.v  of  the  partlcK.  'I  his  case  iniiHt 
be  deciiled  upon  the  result  we  hIimII  come 
to  upon  the  principal  Muesllon  no  fnllv  ar- 
gued, whether  llie  propeitv  In  the  l..o" bar- 
rels of  pork  ev.r  pa-sed  from  the  v.-ndorn 
by  a  sale  HO  far  con.plcie  a«  to  autliorlze 
tlie  idalntlff  to  maintain  his  action  of  re- 
plevin for  the  same.  It  appears  iroiii  thp 
facts  slated,  that  on  February  Itl.  IvV),  ii 
contract  was  made  l»y  the  defemlantH 
I  with  Secoinb,  Taylor,  &  Coinnaii v.  to  sell 
jtliem  :;,-,((  barrels  of  pork  briind"ed  "  ^Vo^- 
|  cesler  &  Hart ;  "  thatnliillof  sale  of  the 
poik  was  made  and  delivered  to  them, 
an  I  they  gave  the  defemlanls  their  nego- 
tialile  promissory  notes  of  hand  therefor, 
f.ayaMe  in  six  niontlis;  that  It  was  fur- 
ther agreeil  t  hat  the  (lork  should  remoin 
in  dffendants'  cellar  on  stornge,  at  the 
risk  and  i'.\pen8e  of  the  purchasers ;  thiit 
Secoinb,  Taylor,  &  t'oin|iany,  on  the  l:ith 
of  .May,  1.s.'>ll.  solil  lliit  bcrrels  of  the  fiork 
to  one  Lang,  who  received  llK'sameof  the 
defendants  upon  the  orderof  Sec. imti. Tay- 
lor. &  Company;  that  on  the  •.'Tlh  of  May, 
Is.Vt,  Seconili,  Taylor,  &  ('oni|iany  solil 
tlie  pbiintiff  l.">0  barrels.  «lth  an  order  on 
tlie  defendants  therefor.  The  next  da.v 
the  ))laintlff  gnve  notice  to  the  ilefciidantH 
of  tliepurchase,  and  recpiested  them  to  hold 
the  Hame  on  storage  for  him  to  which  the 
defendants  assented.  On  the  L'.'dh  oi  .lime, 
SecomI).  Taylor,  iV  ('onipany  became  In- 
solvent, and  on  the  same  day  the  plalnlirr 
called  upon  the  defendants  for  the  pur- 
pose of  receiving  the  l.'iii  liarrels  of  p.irk, 
tint  tlie  defendants  refused  to  allow  lilin 
to  do  so.  On  the  next  day  a  more  fonniil 
demanil.  ai-conipanied  by  an  offer  to  pay 
storage,  was  made,  which  lii'lng  refused 
by  the  defeiitlants.  nil  action  of  repli'vin 
was  instituted,  and  l.M)  liarrels  of  pork, 
the  same  now  in  controver-y.  were  taken 
and  removed  from  said  cel'nr,  and  deliv- 
ered to  the  plaintiff. 

The  furtherfact  Isstated  In  the  case. and 
it  is  this  which  raises  t!ie<|niwt  ion  of  prop, 
erty  in  the  plaintiff,  that  the  pork  liar- 
gained  anil  sold  in  the  manner  aliovp 
slated  was  in  the  cellar  of  the  delciidanlH, 
and  n  parcel  of  a  larger  niiantity  ol  the 
same  brand,  and  also  with  some  of  a  dif- 
ferent brand,  and  so  contiii'ied  jiarccl  of 
a  larger  quantity  of  similar  liraml.  n|i  to 
the  tiiee  of  the  suing  out  of  the  |daliilif('H 
writ  of  replevin:  though  this  fact  was 
not  at  the  time  of  the  sale  stated  to  the 
piiri'hasi'i's,  or  to  the  |)laliitirf  when  he 
ipurchased     of     .Srcoinli.    Taylor,    \    Cniii- 

paiiy.     Mad  these  1.V.0  barrels  of  pork  I n 

a  separa'e  parcel,  or  had  the  parties  di-s- 
igiiJ.ted  them  liy  any  visible  mark,  distln- 
guishiiig  tlieni  from  the  residue  of  the  viui- 
dors"  stock  of  pork,  the  sale  would  clearly 
have  been  an  alisolute  one.  and  the  prop- 
erty would  at  once  have  pas^-ed  to  tlifl 
(lurchaser.  There  was  nothiiiK  reqiilriMl 
to  have  been  done  but  this  separation 
from  the  general  mass  of  Ilk'-  kind,  lo  have 
placed  the  sjile  bevniid  nil  question  or 
doubt  as  to  Us  validity. 

The  rnses  cited  liy  the  plaintiff's  counsel 
fully  establish  the  position,  that  what 
was  done  in  this  case  would  have  traoH- 
leriod  the  property  in  the  pork,  If   the  8Ule 


706 


SCUDDER  V.  WORSTER. 


had  been  of  all  the  pork  in  the  cellar,  or  of 
juiy  entire  parcel  weparateil  froiu  the  rewi- 
(liie,  or  if  the  '2'>i)  barrels  hafl  some  dt'Scrlp- 
tive  mark  distinitnishiiifr  them  from  the 
other  barrels  not  sold.  The  djthcult.v  in 
the  case  is,  in  maintaininK  tliat  in  the  al)- 
nence  of  each  and  all  these  circumstances, 
distinsuishing  the  articles  sold,  tlie  partic- 
ular barrels  of  pork  selected  by  the  officer 
from  the  larger  mass  when  he  served  this 
process,  were  the  [)ropert.v  of  the  plaintiff, 
or  had  ever  passed  to  him.  In  addition, 
however,  to  the  numerous  cases  cited  to 
estal)li.<h  the  general  principles  contemled 
for  on  the  part  of  the  plaintiff,  and  which 
would  hnve  been  decisive,  if  it  had  been  a 
sale  of  all  the  pork  in  the  cellar,  or  a  par- 
ticular parcel, orcertaiii  barrels  havingde- 
scriptive  niarks  which  would  enable  the 
vendee  to  separate  hi.s  own  from  the  resi- 
due, were  cited  several  more  immediately 
bearing  upon  the  present  case,  and  where 
property  not  separable  has  been  held  to 
pass  to  the  vendee.  The  leading  case  re- 
lied upon  is  that  of  Pleasants  v.  Pendle- 
ton, (i  Kand.  17.").  This  was  an  action  by 
the  vendor  to  recover  the  price  of  110  bai-- 
rels  of  flour  sold  to  the  defendant.  .\'o 
other  objection  existed  t(j  the  validity  of 
the  sale,  except  that  the  119  barrels  were 
a  parcel  of  123  barrels,  all  of  similar  kind, 
in  the  same  warehouse.  There  were  cer- 
tain brands  or  marks  on  the  entire  1.3 
barrels.  The  fiour  was  destroyed  by  fire 
while  on  storage,  and  the  vendee  refused 
to  pay  for  the  lUl,  upon  the  ground  that 
the  sale  was  ni>t  perfected  for  want  of  sep- 
aration from  the  lL':5  barrels.  The  court 
refused  to  sustain  the  defence,  and  ga»'e 
judsment  for  the  plaintiff.  In  i-eference  to 
this  case,  Grinike,  .1..  in  Woods  v.  Mc(Jee, 
7  Ohio,  127,  says;  " It  is  impossible  to  di- 
vest ourselves  of  the  impression  that  the 
small  diflerence  between  the  aggregate 
maps  and  the  quantity  sold,  the  former 
being  123  barrels,  and  the  latter  Hi),  may 
have  influenced  the  decision.  It  was  a 
hard  case,  and  hard  cases  make  shipwreck 
of  principles. " 

.lackson  v.  Anderson,  4  Taunt.  24,  was 
an  action  of  trover  to  recover  for  tlie  ecu- 
version  of  19('>!)  Spanish  dollars.  It  ap- 
peared that  the  ainouiit  had  lieen  ttans- 
milled  t<i  a  consignee  for  the  use  of  the 
l)laintiff,but  they  were  in  a  parcel  of  .f  4i)IS, 
all  of  which  came  into  the  liands  of  the 
defendant.  Among  other  points  raised  at 
the  argument,  was  this,  that  there  was 
nothing  to  distinguish  the  $!!)(!()  from  the 
entire  mass;  that  there  had  been  no  sepa- 
ration, and  of  course  the  plaintiff  had  no 
property  in  any  particular  i)ortion  of  the 
money.  The  point,  it  seems,  was  not 
made  at  the  trial  before  the  jury,  but  sug- 
gested by  the  cfsurt  during  the  argunicnt 
before  the  full  court,  and  this  is  stated  by 
the  reporter;  the  court  interrui)ted  the 
c(»unsel,  anvl  intimated  a  sti'ong  doubt,  as 
there  was  nothing  to  distinguish  the 
^liKil)  from  the  remaining  contents  of  tlie 
barrel,  wiiether  the  action  could  lie.  At  a 
future  da.v  the  court  eave  judgment  for 
the  plaintiff.  The  objection  was  over- 
ruled upon  the  ground  th;it  the  defend- 
ant had  (li-<p()sed  of  all  tie  <lollars.  conse- 
qnently  lie  hail  disposed  of  those  belong- 
ing to  the  plaintiff. 


The  case  of  Gardner  v.  Dutch,  9  Mass. 
427,  is  apparently  the  strongest  case  in  fa- 
vor of  tne  plaintiff.  The  case  was  replevin 
against  an  officer  who  hail  alta<  heil 
goods  as  the  property  of  Wellman  & 
I'.opes.  The  plaintiff  liadseven ty  six  bags 
of  coffee,  to  which  he  l>ecame  entitled  as 
owner,  upon  an  adjustment  of  accounts 
of  a  voyage  he  had  [>erforined  for  Well- 
man  &  Hopes,  but  the  bags  belonging  to 
the  plaintiff  were  in  no  way  distinguished 
by  marks,  or  separated  from  the  other 
coffee  of  Wellman  &  Ropes.  The  plaintiff 
on  Ills  arrival  at  Salem,  from  his  voyaue. 
delivering  the  entire  coffee  to  Wellman  & 
Ropes,  taking  their  receipt  "for  sevent.v- 
six  bags  of  coffee,  being  his  adventure  on 
board  schooner  Liberty,  and  which  we 
hold  subject  to  his  order  at  any  time  he 
may  please  to  call  for  the  saire. "  The 
point  taken  in  thecase  was  that  the  plain- 
tiff had  not  the  side  property,  l)ut  only  an 
undivided  interest, and  so  could  not  main- 
tain replevin.  The  court  ruled  that  the 
plaintiff  was  not  a  tenant  in  common, 
but  might  have  taken  the  number  of  liags 
to  which  he  was  entitled,  at  his  own  selec- 
tion, and  might  maintain  his  action. 

This  case,  on  the  face  of  it,  seems  to  go 
far  to  recognize  the  right  of  one  having  a 
definite  nnml)er  of  barrels  of  any  given 
articles  mingled  in  a  common  mass,  to  se- 
lect and  take,  to  the  number  he  is  entitled, 
alth(/ugli  no  previous  seiiaration  had 
taken  |jlace.  It  is,  however,  to  lie  borne 
in  mitid  in  reference  to  this  case,  that  it 
did  not  arise  between  vendor  atid  vendee. 
The  interest  in  the  seventy-six  bags  of 
coffee  did  not  originate  by  purchase  from 
Wellman  &  Ropes.  They  becanie  the  spe- 
cific propert.v  of  the  plaintiff  in  that  ac- 
tion on  an  adjustment  of  an  adventure, 
the  whol?  proceeds  of  which  were  in  his 
hands;  and  separated  with  the  possession, 
only  when  he  took  their  accountalde  re- 
ceipts for  sevent.v-six  bags,  held  by  them 
<m  his  account.  It  did  not  raise  the  ijues- 
tion,  here  so  full.v  discussed,  as  to  what  is 
necessary  to  constitute  a  delivery,  and 
how  far  it  was  necessary  to  have  a  sepa- 
ration from  a  mass  of  articles,  to  constitute 
a  transfer  of  title.  Perhaps  the  circum- 
stances may  well  have  warranted  that 
decision,  but  we  are  not  satisfied  that  the 
doctrine  of  it  can  be  properly  hpiilied  to  a 
case  where  the  party  asserts  his  title, 
claiming  r)nly  as  a  purchaser  of  a  specific 
number  of  barrels,  there  having  been  nt> 
possession  on  his  part,  and  no  separatiini 
of  the  same  from  a  larger  mass  of  articles 
similar  in  kind,  and  no  descriptive  marks 
to  designate  them. 

On  the  other  hand,  iri  support  of  the 
position  that  this  sale  was  never  perfected 
for  want  of  sucl.  se()aration  of  the  partic- 
ular barrels  on  account  of  the  plaintiff,  or 
some  designation  of  them  from  others  of 
like  kind,  there  will  be  foutid  a  strong 
weight  of  authority  ;  and  to  some  of  the 
most  prominent  cases  1  will  briefi.v  refer. 
Tlius,  in  the  case  of  Hutchinson  v.  Hunter, 
7  liarr,  140,  which  was  an  action  of  «s- 
sun.psit  to  recover  payment  for  100  bar- 
rels of  molasses  sold  to  the  defendant,  the 
sa  me  being  parcel  of  12.t  barrels,  and  the 
v.hole  destroyed  by  fire  while  on  storage, 
and  before  separation    or  designation   of 


SCUDDEH  c.  AVORSTER. 


707 


any  particular  Itarrels,  It  was  held  that 
the  plnititiff  coiilil  nut  rerovcr.  the  Hiih- 
never  \ii\\'\u}i  Ixcii  rorisiiii.'inatcil.  Itutrci-. 
J.,  Ka>H:  '"'I'he  liiniliiniciital  rule  wliiili 
a|iplli'H  to  thiH  ciise  iw,  that  the  parties 
niUHt  be  agreed  aw  to  the  KptcKic  koo<I« 
on  wliieli  the  coiitraet  is  to  attach  before 
there  can  be  a  liarKalii  and  Bale.  The 
goods  iiiUKt  be  aHcerlained,  deNiunated. 
and  separated  from  tlie  stocli  or  quantity 
willi  which  they  are  mixed,  before  the 
pro|ierty  can  paKs."  He  considers  the 
case  of  I'ieasants  v.  Peiidleton,  <i  Hand. 
47."i,  as  decided  un  erroneons  prineifiles. 
The  case  of  Hutchinson  v.  Hunter  pre. 
sented  a  case  of  a  sab-contract  or  sale  like 
the  present,  and  it  was  urged  that  this 
differed  the  casefroni  what  it  niidiit  other- 
n  isp  have  been,  as  respects  the  original 
vendor.  I'.ut  the  court  held  that  this  did 
Dot  vary  the  cas-e  In  the  matter  of  the  ne- 
cessily  of  a  se|iaration  of  the  article  sold 
from  the  urea  ter  mass.  So  in  Golder  v. 
Ogden.  1.')  I'enn.  St.  (;i  Harris,)  .")L'H,  where 
a  contract  was  made  for  the  sale  of  L'OOO 
pieces  of  wall  |>aper.  the  purchaser  jtiviim 
Ills  notes  therefor  to  the  vendor.  an(l  tak- 
iuK  away  with  him  loou  pieces,  and  it  was 
URreed  that  the  other  1000  pieces  should 
remain  until  called  for  by  the  purchaser, 
upon  a  (lUOKtion  of  [)roperty  in  the  re- 
maining 1001)  pieces  between  the  assignees 
of  the  vendor  and  the  i)urchaser.  it  was 
held  that  these  loOOpieces  not  having  been 
selected  by  the  buyer,  or  separated,  or  set 
«[iart  for  him.  but  remaining  minp.leil 
with  other  pa|>er  of  same  description,  did 
not  become  tlie  property  of  the  alleged 
buyer,  as  against  as  assignment  for  the 
benefit  of  the  creditors  of  the  vendor.  The 
principle  advanced  in  that  case  seems  to 
be  the  sound  one:  "That  the  property 
cannot  pass  until  there  be  a  specific  iden- 
tification in  some  way  of  the  particular 
gooils  which  the  partv  bargains  for.  The 
law  knows  no  such  thing  as  a  floating 
right  of  property,  which  may  attach  itself 
either  to  one  parcel  or  the  other,  as  may 
be  found  convenient  afterwards."  The 
case  of  Waldo  v.  lU'leher,  11  Iredell,  c.o'.l, 
was  the  case  of  a  sale  of  corn  by  a  vendor, 
having  in  his  store  aiOO  bushels  of  corn, 
and  selling  INoo  bushels  of  the  same,  l)Ut 
the  LNtKpiiushels  were  never  separateii  from 
the:!loo,  and  the  whole  was.  after  the  sale, 
destroyi'd  by  (ire;  and  it  was  held  that 
the  property  in  the  L^Oo  bushels  <lid  not 
pass  to  the  vendee,  though  it  would  have 
been  otherwise  liad  it  been  a  saleof  all  the 
corn  in  the  crib.  The  ground  of  the  deci- 
sion was,  that  there  had  been  no  separa- 
tion, that  it  could  not  be  ascertained 
which  corn  was  the  property  of  the  ven- 
dee until  it  was  separated.  The  purchaser 
could  not  bri:;g  detinue,  because  he  could 
not  dcKcribi'  the  particular  thini;.  This 
would  be  ecpiallv  so  as  to  replevin.  The 
case  of  Merrill  "v.  Hnnnew?ll.  l:M'ick. '.'l.-t.  ' 
hears  strongly  upiin  the  ((Uestion  before  [ 
us.  H  was  a  sale  of  nine  arches  of  bricks 
in  a  kiln  containing  a  larirer  number,  but 
not  separated  from  the  residue,  or  specif- 
ically designated.     .\fter    the  vendor   had.! 


by  other  sales,  reduced  the  quantity  on 
hand  to  IcFs  than  nine  vrchts.  upon  « 
Mnehlion  of  property  between  ihe\en.l«e 
and  au  attaching  creditor  of  the  vendor, 
it  was  held  the  (lurchaser  took  no  prop, 
erty  in  the  bricks,  the  sale  being  of  part  of 
a  lj;rge  niass.  not  delivered  nor  specitlcally 
<lesit'nati(l, 

Itlackburn.  in  his  Treatise  on  .Sal'-».  p. 
I'O.  piespiits  the  law  on  this  subject  thus: 
"Until  the  ()arties  are  agrei'd  /is  to  the 
si.ecilic  Identical  goods,  the  contract  can 
be  no  more  than  a  contract  to  su|iply 
goods  answering  a  iiarticular  de»iriiition. 
and  since  the  vendor  would  fullil  his  part 
of  the  contract  by  furnishing  any  parcel 
of  goods  answering  that  deHcrlpti'on.  It  Is 
clear  there  can  be  no  intention  to  transfer 
thepiopi'rty  in  any  partiiular  lot  of  goods 
more  than  another,  until  it  is  ascertained 
which  are  the  very  goods  sold." 

E.xamluing  the  facts  in  the  case  before 
us,  and  applying  the  principles  of  therases 
last  cited,  and  the  appioved  elen  entary 
floctrine  as  to  what  is  necessary  to  coimtl- 
tute  a  sale  of  property  not  separated  friira 
the  massof  like  kind. or  designatecl  liy  any 
descriptive  marks,  the  court  are  clearly  of 
opinion  that  the  pro|ierty  in  the  spiH-illeil 
ir)0  barrels  of  pork  taken  by  the  (dalntiff. 
under  his  writ  of  replevin,  had  never 
passed  from  the  vendors,  and  therefore 
this  action  cannot  be  maintained. 

In  the  argument  of  this  case  on  the  part 
of  the  plaintiff,  the  case  was  put  as  u  case 
of  intermixture  of  goods,  and  It  was  ar- 
gued that  such  intermixture  having  taken 
place,  the  [dalntiff  might,  for  that  cause, 
hold  the  |)roperty  an  bis.  Itut.  in  fact, 
there  was  no  sucli  case  of  intei  nil.\ture. 
The  entire  property  was  always  In  the  de- 
fendants. 

It  was  also  urged  that  the  ilefendants 
were  estopped  to  deny  that  the  I.Vi  liarrels 
of  pork  were  the  properly  of  the  plaintiff, 
having  given  a  bill  of  sale  of  tli"  same, 
and  under  the  circumstances  stated  In  the 
stalementOf  facts.  Had  this  been  an  ac 
tion  to  recover  damages  for  the  value  of 
l.'O  barrels  of  pork,  this  position  niiulit  be 
tenable,  and  tin'  defendants  estoppeil  to 
deny  the  property  of  the  plaintiff  in  suth 
l.'iO  "liarrels.  Thiswouhl  be  so  if  an  ac- 
tion had  been  brought  agaiast  the  defend- 
ants as  bailees  of  l.'iO  barrels  of  pork,  and 
for  not  delivering  the  same. 

r.ut  the  dintinction  between  the  case  of 
an  action  for  damages  for  not  delivering 
l.'.U  barrels,  and  that  of  replevia,  com- 
niandini;  the  otficer  to  take  from  tlie  pos- 
session of  the  defendants  l.'iO  liarrels.  and 
deliver  the  san'p  to  plaintiff  as  his  prop- 
erty, is  an  obvious  one.  To  sustain  the 
forn\er.it  is  only  nere>sary  to  shown  right 
to  l."iO  barrels  generally,  anil  not  any  spe- 
cil'c  l.'iO  barrels:  but  to  maintain  replevin, 
the  plaintiff  must  be  the  owner  of  some 
speci'ic  ro  barrels.  If  bought,  they  must 
lif  specitlcally  set  apart,  or  designated  In 
some  way  as  hU.  and  not  InterminRleil 
with  a  larger  mass  of  like  kind  owned  by 
the  venilor. 

.Indgnient  for  the  defendants. 


SEITZ  0.  BREWERS*  REFRIGERATING  MACH.  CO. 


709 


BEITZ  V.  BREWERS'  REFRIGERATING 
MACH.  CO. 

(12  Sup.  Ct.  Hep.  46,  141  U.  S.  510.) 

Supreme  Court  of  the  United  States.    Nov.  9, 1891. 

In  prror  to  the  circuit  court  of  the  Unit- 
ed States  for  the  eastern  district  of  New 
York. 

Action  by  the  Brewers'  Rcfrifteriiting 
Macliine  Company  uRaiiiHt  Michael  Seitz. 
There  was  judK'nient  lor  i)laintiff  on  a  ver- 
dict directed  iiy  the  court,  and  defendant 
brings  error.     Judunient  adirnied. 

Staieincnt  liy  Fuller,  C".  J.  This  was 
an  action  brou;iht  by  the  Brewers'  Be- 
fr'^eratinK  Machine  Company  a;<ainst 
Michael  Seitz  ui)on  the  following  con- 
tract: "Tliis  agreement,  made  this  lltli 
day  of  January,  A.  L).  IST'.).  between  the 
Brewers'  I{efrigerating  Machine  (.'ompany 
of  Alexandria,  Va.,  party  of  the  first  part, 
and  Michael  Seitz,  of  Brooklyn,  N.  Y.,  par- 
ty of  the  second  part,  witnesseth  :  That 
the  party  of  the  first  part  hereby  agrees 
and  contracts  to  supply  tlie  party  of  the 
second  part  with  a  No.  2  size  refrigerating 
machine,  as  ciinstructed  by  the  said  party 
of  the  lirst  part,  by  tlie  l.")th  day  of  .March 
next,  or  as  soon  thereafter  as  possible,  the 
machine  to  be  delivereiJ  at  the  depot  f)r 
wharf  in  I'hiladelphia,  Fenn.,  and  to  be  put 
up  and  put  in  operation  in  the  brewery  of 
the  said  party  of  the  second  part  at  L'.'iN-2(;4 
Maujer  street,  at  Brooklyn,  E.  U.,  N.  Y., 
under  the  superintendence  of  a  competent 
man  furnished  I)y  the  said  party  of  the 
first  part.  The  party  of  the  second  [lart 
hereby  agrees  and  contracts  to  pay  to  the 
<aid  party  of  tlie  lirst  part  for  said  ma- 
chine the  sum  of  nine  thousand  four  hun- 
dred and  lifty  dollars  (.ti'.t.4.'i().ilU)  in  manner 
as  follows,  namely  :  Four  thous;ind  seven 
hundred  and  twenty-five  dollars  ($4,- 
725.00)  on  the  da.v  when  the  ninehine  is 
put  in  operation  at  the  l)reweryof  thes;iid 
party  of  the  second  part,  and  the  balance 
of  four  thousand  seven  hundred  and  twen- 
ty-live dollars  ($4,7l''))  in  three  et|ual  in- 
stallments: that  is  to  say,  oni'  thousand 
five  hundred  and  sevenly-live  dollars  (?!,- 
57.").0l)i  for  each  installmi-at,  payable,  re- 
spectively, in  one,  (1,)  two,  (2,)  and  three 
(3)  months  after  the  day  when  the  machine 
is  put  in  operation  at  the  bi'ewery  of  the 
said  |)arty  of  the  second  part,  for  which 
installments  (he  said  party  of  the  second 
part  agrees  and  contracts  to  give  his 
notes  on  the  day  last  mentioned." 

The  complaint,  after  setting  forth  the 
execution  of  the  contract  on  tlie  11th  of 
January,  .\.  I).  lf<7!l,  alleged  compliance 
therewith  in  every  respect  bj-  the  plaintiff, 
and  breach  of  the  promise  to  i)ay  the  pur- 
chase price.  'l"he  defendant  stated  in  his 
answer,  among  other  things,  "that  the 
niacliine  placed  in  defctidant's  brewery 
was  worthless,  and  incapalile  of  op?rat- 
ing  to  produce  the  results  represented  by 
plaintiff  to  this  defendant  as  an  induce- 
nienl  to  enter  into  the  aforesaid  agree- 
ment; that  sai<l  machine  has  not  lieen  ac- 
cepted by  this  defendant,  nor  operated, 
or  at  tempted  to  be  opera  ted.  by  defendant, 
his  agents,  employes,  nur  any  other  per 
son  aetiiig  liy  or  under  his  authoiity,  and 
did  not  i);iss"(.ut  of  theeoiitrol  of  theplain- 
lii'f:  nor  has  the  said  machine  lieen  useil 
by  him  in  his   said    brewery,  because  said 


machine  was  worthlesB,  nnil  Incnpablp  of 

serving  any  iisefid  piiriiose  tliiTcln.  "  AnO 
defendant  also  averred,  by  way  of  coun- 
ter-claim, that  he  had  susliiined'  daniagea 
by  reason  of  false  and  frauduh'nt  repn-- 
sentutions  by  plaintiff  as  to  what  thi-  ma- 
chine would  accomplish.  In  reliance  upon 
which  he  had  permitted  his  brewery  to  be 
subjected  to  the  action  of  said  miieldne. 
and  suffered  loss  accordingly,  f'pon  the 
trial  before  the  circuit  judge  and  a  jury, 
plaintiff  proveil  thatn  No.  2  nlze  refrigiTnl- 
ing  machine,  as  constructed  by  the  lirew- 
ers'  Befrigernting  Machine  ('oiiipany,  was 
supplied  defendant,  and  put  up  and  put  in 
operation  in  his  bn-wery  by  it  in  accord- 
ance with  the  terms  of  the  contract.  Iie- 
fendant  thereupon  aBke(l  to  amend  his  an- 
Bwer.  "toset  up  that  delendntit  entered 
Into  that  contract  by  reason  of  fraudulent 
representations  on  the  i)art  of  this  '-om- 
pany."  The  amendment  was  nllnweil. 
and  was  in  substance  that  plaintiff  repr<>- 
sented  that  tiie  machine  was  capable  of 
cooling  certain  rooms  in  the  brewery 
which  had  lieen  examined  by  piaintiff; 
but  the  machine,  when  set  up  and  operat- 
ed, was  n<^t  so  capalile.  and  failed  to  per- 
form the  work  for  which,  upon  the  n-pre- 
sentationsof  theplaintiff.  the  machine  had 
been  contracted  for  by  defendant:  that 
defendant  contracted  to  purchase  the 
machine  upon  the  giiarant.v  byplaintlfl  to 
defendant  that  it  woulii  cool  certain 
rooms,  an<l  it  was  u|ion  that  gu.iranty 
alone  that  defeiid.int  entered  into  the  eon- 
tract:  that  defendant  entered  into  the 
contract  upon  the  representations  <if  the 
plaintiff  to  tlie  effect  that  the  No.  2  iiiii- 
chine  referred  to  in  the  contract  set  forth 
in  the  complaint  would  c«iol  and  was  cap- 
able of  cooling  a  space  of  l."iO,aoii  cubic  feH 
of  air  continuously  to  a  temperature  snifl- 
cientl.v  low  for  the  purpose  of  bP'Wing  or 
manufacturing  beer  in  the  defendanfs 
brewery  or  premises,  that  is  to  say,  to  a 
temperature  in  the  neighborhood  of  40* 
Fahrenheit:  and  that  the  plaintiff  kni-w, 
at  and  beftire  the  time  when  the  con- 
tract was  niaile,  that  the  representa- 
ti<ins  n):ide  to  tlie  defendant  werefalse  and 
unfonndi'd,  and  knew  that  the  said  \o. 
2  machine  was  no*^  callable  of  perfdrming 
the  work  which  plaintilf  represented  It  uti 
being  capable  of  performing,  and  knew 
that  the  machine  would  be  worthless  to 
the  defendant  for  the  purposes  for  which 
defendant  contracted  for  it  and  Intenili-d 
to  use  It. 

Kvideiice  on  defendant's  behalf  wnstlieii 
admitted,  tending  to  show  that,  pritir  to 
the  execution  of  the  cmitract,  plaintiffs 
agents  had  represented  that  the  ma- 
chine would  cool  1,->0.(MI0  cubic  feet  to  40^ 
Fahrenheit  :  that  ih'f.  mlaiit  bad  been 
cooling  his  lirewery  with  Ice,  and  wished 
the  machine  to  cool  the  rooms  to  about 
the  same  extent;  and  that  the  machine 
did  not  cool  the  rooms  as  desired.  On 
cross-examination  of  the  dctendanfn 
agent,  it  apiieared  that  on  January  13, 
IsTO.  he  wrote  to  the  secretary  of  the  re- 
frigerating company:  "In  speaking  t«i 
Mr.  .M.  Seitz  to-day  he  said  that  your 
agreement  was  very  unsatisfactory  to 
him:  in  fact,  that  bcl.iie  he  would  gi-t  the 
machine  that  he  wanted  a  written  gnar- 
aatvfrom  von  that  you  woulil  cool  his 
building,  which   you    huvosceu,  to  3)»  11., 


no 


SEITZ  V.  BREWERS'  REFRIGERATING  MACH.  CO. 


and  keep  it  at  that  all  the  time;  other- 
wise lie  would  not  have  the  machine,  as  he 
would  have  no.  use  for  it,  as  he  would 
liave  to  put  himself  to  great  expense  and 
•.jreat  risk  at  the  same  time."  To  which 
plaintiff  respimded,  January  2t)th :  "I 
regret  to  hear  tliat  Mr.  Seitz  fecJs  dissatis- 
faction with  the  contract  made  with  him. 
The  guaranty  he  now  asks  for  in  addition 
it  would  not  lie  proper  for  us  to  give,  as 
Mr.  Seitz  himself  will  see  on  further  reflec- 
tion, we  think.  The  maintenance  of  a 
certain  temperature  in  his  rooms  is  not 
solely  dependent  upon  our  machines;  in 
fact,\here  are  a  great  many  other  things 
entirely  beyond  the  ccmtrol  of  the  machine 
which  influence  tliis  temperature.  The 
mode  of  working  tlie  rooms,  the  water 
used  for  washing,  the  fermentation,  and 
many  other  things  might  be  mentioned  in 
this  connection  as  matters  which  we  can- 
not control,  and  which  nevertheless  are 
most  important  considerations  In  the 
maintenance  of  a  given  temperature.  We 
are  confident,  from  the  experience  with  the 
Portner  machine  during  last  summer  and 
fall,  that  the  machine  sold  to  .\Ir.  Seitz 
will  not  only  give  him  the  desired  low 
temperature,  but  will,  in  addition,  give 
him  what  he  never  before  had  in  the 
warmer  montlis,  namely,  pnre  and  dry 
air.  The  machine  we  are  building  for  him 
is  in  many  respects  far  superior  (aside 
rom  sizel  to  the  Portner  macliine,  and 
when  he  has  had  it  a  year  we  believe  he 
would  not  part  with  it  for  any  money,  if 
lie  could  not  replace  it.  That  we  must  de- 
cline to  guaranty  what  Mr.  Seitz  asks  for 
is  sim])ly  for  the  reasons  stated.  There 
are  too  many  side  considerations  entirely 
beyond  the  control  of  the  macliines.  We 
would  add  that  we  have  not  in  anj'  in- 
stance been  asked  for  such  a  guaranty  a.s 
a  condition  of  sale,  but  tliat  all  the  par- 
ties to  whom  we  have  sold  bought  on  our 
representations,  and  what  they  have  seen 
and  hoard  of  the  working  of  the  Portner 
machine."  On  January  L"l,  1.S7!),  defend- 
ant's agent  telegraphed  plaintiff:  "Will 
you  defend  any  infringement  suits  against 
Mr.  Seitz  for usiiigyour  machine?"  and  on 
January  23,  11S7U,  wrote:  "The  machine 
sold  to  Mr.  M.  Seitz  is  all  right,  and  can  be 
sent  at  any  time  that  it  is  ready.  "  On  the 
Kith  of  March  he  again  wrote  plaintiff: 
"  Mr.  Seitz  would  like  to  have  you  to  com- 
mence at  once  i)utting  up  his  machine." 
The  defendant  having  rested,  the  court, 
on  motion,  directed  a  verdict  for  tlie 
plaintiff  for  the  amount  claimed.  The 
circuit  judge  remarked  to  the  jury  that 
the  only  defense  worthy  of  consideration 
was  that  the  machine  was  sold  to  the  de- 
fendant under  fraudulent  representations 
by  the  plaintiff's  agents,  but  that  there 
was  no  evidence  of  fraud  whatever  in  the 
case;  that  there  was  evidence  to  show 
that  the  machine  did  n(jt  work  satisfac- 
torily, and  the  jury  were  doubtless  au- 
thorized to  infer  that  it  did  not  have  the 
capacity  of  cooling  15(i.(iOO  cubic  feet  to 
the  degree  stated,  but  that  there  was  a 
written  contract  in  the  case,  which  con- 
tained no  warranty,  and,  consequently,  if 
the  machine  did  not  fulhll  the  expectations 
of  the  defendant,  or  if  it  did  not  fulfill 
verbal  representations  made  at  the  time  the 
contract   was   entered   into,   nevertheless 


defendant  had  no  defense;  that  there 
was  no  evidence  that  false  or  fraudu'ent 
representations  had  been  made;  that  the 
machine  had  been  built  and  put  uj)  pursu- 
ant to  the  written  contract ;  and  that  the 
defendant  could  not  be  iierniitted,  upon 
the  general  theory  that  the  machine  was 
not  a  satisfactory  article,  to  defeat  the 
plaintiff  from  recovery.  The  verdict  hav- 
ing been  rendered  as  directed,  and  judg- 
ment entered  thereon,  the  cause  was. 
brought  here  on  writ  of  error. 

Esek  Cuwen,  for  plaintiff  in  error,  .liilin 
H.  V.  Arvnld,  for  defendant  in  error. 

FiiLr.ER,  C.  J.  If  the  defense  were  solely 
that  the  defendant  was  induced  by  false 
and  fraudulent  representations  to  enter 
into  the  contract  in  question,  it  is  conced- 
ed that  the  circuit  court  did  not  err  in 
directing  a  verdict  for  the  [ilaintiff,  as 
there  was  no  evidence  of  fraud  in  the 
case.  It  is  earnestly  contended,  however, 
that,  under  the  answer  as  amended,  the 
defendant  was  entitled  to  avail  himself  of 
the  breach  of  an  alleged  contract  of  war- 
rant.v  or  guaranty  collateral  to  the  con- 
tract of  purchase  and  sale;  or  of  an  im- 
plied warranty  that  the  machine  should 
be  reasonably  fit  to  accomplish  a  certain 
result.  Assuming  the  sufficiency  of  tlit 
pleadings  to  enable  the  questions  indi- 
cated to  be  raised,  we  are  nevertheless  of 
opinion  that  the  direction  of  the  circuit 
court  was  correct.  The  position  of  plain- 
tiff in  error  is,  in  the  first  place,  that  the 
evidence  on  his  behalf  tended  to  show  an 
agreement  between  himself  and  defendant 
in  error,  entered  into  prior  toorcontem- 
poraneousl.v  with  the  written  contract, 
independent  of  the  latter  and  collateral  to 
it,  that  the  machine  purchased  should 
have  a  certain  capacity,  and  should  be 
capable  of  doing  certain  work ;  that  the 
machine  failed  to  come  up  to  the  re()uire- 
nients  of  such  independent  par<d  contract; 
that  this  evidence  was  competent;  and 
that  tl.e  case  should  therefore  have  been 
left  to  the  jury.  Undoubtedly,  the  exist- 
ence of  a  separate  oral  agreement  as  to 
any  matter  on  which  a  written  contract  Is 
silent,  and  which  is  not  inconsistent  with 
its  terms,  may  be  proven  by  [larol,  if,  un- 
der the  circumstances  of  theparticularca.se, 
it  may  ijroperl.y  be  inferred  that  the  jiar- 
ties  did  not  intend  the  written  pajjer  to  be 
a  complete  and  final  statement  of  the 
whole  of  the  transtiction  between  them. 
But  such  an  agreement  must  not  only  he 
collateral,  but  must  relate  to  a  subject 
distinct  from  that  to  which  the  written  con- 
tract applies;  that  is,  it  must  not  be  so 
clcjsely  connected  with  the  principal  trans- 
action as  to  form  ]jart  and  parcel  of  it. 
And  when  the  writing  itself  upon  its  face 
is  couched  in  such  terms  as  import  a  com- 
plete legal  obligation,  without  any  un- 
certainty as  to  the  object  or  extent  of  the 
engagement,  it  is  conclusively  presumed 
that  the  whole  engagement  of  the  par- 
ties, and  the  extent  and  manner  of  their 
undertaking,  were  reduced  to  writing. 
1  (ireenl.  Ev.  §  275. 

There  is  no  ijretense  here  of  any  fraud, 
accident,  or  mistake.  The  written  con- 
tract was  in  all  respects  unambiguous  and 
definite.    The  machiue  which  the  compa- 


SEITZ  0.  BREWERS'  REFRIGERATIXG  MACH.  CO.  711 

ny  sold,  and  wliieli  Scitz  boiiglit,  was  a  [  rule.nscuprcssed  in  tlic  fcx*-l>ook««n<I»iiii- 
Nil.  2  size  rcfriKcr.itiiiK  iiiacliine,  ok  eon-  |  tainr-il  by  nutlmrilv.  tlwit  « luTt-  a  kni>wii. 
Hlnictcil  l)y  the  coinimiiy,  and  kucIi  wjih  ,  described,  and  ddinitc  article  Ih  unlered 
the  inacliine  wliicli  wa^  ilelivercd.  put  up,  i  uf  a  inanufacUiier.  altliou-li  It  Ih  BtutuU 
and  opeinted  in  the  brewery .  A  warrauty  by  tlie  purchaHer  tu  be  re.pilred  for  a  par- 
cir  Kuaranty  that  tliat  machine  Hliouhl  re-  tieular  purpoHe.  kIIII.  ir  llie  kiunvn,  ile- 
duce  tlie  temperature  of  tlie  brewery  to  ,  Berieic.l. and  deHnite  thinw  be  ai-tuallv  i.up- 
4[p  Fahreniieit,  vvliiie  in  itself  C(dlateral  to  ,  plied,  there  in  no  warrantv  that  it' hIiiiII 
the  Hale,  wlilcii  would  be  eoniplele  with-  nnstver  the  particular  purpoKe  Intemled 
out  it,  would  be  part  of  the  dcscri|>tioii,  bythebuyer.  IJeuj.  SaleH.  j  t;:>7 ;  Add.Coiit. 
anil  essential  to  the  identity  of  the  riiin;;  i  bk.  -J.  c.  7.  p.  *<>■;■;■,  Chanter  v.  HopklnH.  4 
Kold  :  and  to  admit  proof  of  hucIi  an  en-  Mces.  &  \V.  :!!•'.);  Ollivaiit  v.  Ha vlev.  .".  l^. 
jraKi  iiicnt  by  i)arol  would  be  to  add  an-  15.  I'ss;  District  of  Colundda  v.  CUphanp, 
other  term  to  the  written  eontraet,  con-  110  U.  S  lil'J.  3  Sup.  ft.  Itep.  .".tis;  lUhlKi) 
trary  to  the  settled  anil  salutary  rule  Co.  v.  ilaniilton.  Ill)  IJ.  S.  li»s,  :i  .Sup.  Ct. 
upon  that  subject.  Wliether  the  written  Rep.  ."):!7;  Hoe  v.  Saidioni, -Jl  .V.  V.  .ViL'; 
contract  fully  e.xpressed  the  terms  of  the  lJeinin;r  v.  Fosler,  -ll'  .\.  II.  lii.'i. 
agreement  was  a  question  for  thecourt.  In  theeaseat  barthe  machine  purchased 
and  since  it  was  in  this  instance  complete  wasspecilically  ileHi;;nated  in  Ihecoiitract, 
and  perfecton  its  face,  withoiitainblfiiiity,  and  the  machine  so  desiu'uateil  wa-i  dellv- 
anil  embracinti  the  whole  subject-matter,  ered,  put  up,  and  put  in  operation  iti  the 
it  obviously  could  not  be  determined  to  brewery.  Tlie  only  impliiiilion  in  regard 
be  less  comprehensive  than  it  was.  Ami  to  it  was  that  it  would  perforin  the  work 
this  conclusion  is  unaffected  by  the  fact  the  described  machine  was  made  to  do, 
that  it  did  not  allude  to  the  capai'ity  of  and  it  is  notcontended  that  there  was  any 
the  particular  niMchiiie.  To  hold  that  failure  in  such  performance.  This  is  no"t 
mere  silence  opened  the  door  to  jiarol  evi-  the  case  of  an  allejied  delirt  in  the  process 
deuce  in  that  regard  would  be  to  beg  the  of  manufacture  known  to  the  vi-iidor.  but 
whole  question.  We  are  clear  that  evi-  not  to  the  purchaser,  nor  of  presumptive 
denee  tenilinK  to  show  the  Jilleiicd  inde-  and  justifiable  reliance  by  the  buver  on 
pendent  collateral  contract  was  inadmis-  the  judRuient  of  the  vendor  rather  than 
silde.  .Martin  v.  Cole.  101  U.  S,  30;  (Jilbert  j  his  own,  but  of  a  purchase  of  a  spicille  ar- 
V.  I'liniirh  ('o..ll'.l  U,  S.  J!)l,  7  Siq).  Ct.  Rep.  tide,  manufactured  for  a  partiiular  use, 
;;o.");  The  Dilaware,  14  Wall.  IJ7!t;  Nnuin-  and  fit,  pro|ier.  and  ellicacious  for  that 
herd  V.  Youns;.^-! -'^- ■'  Law,  :{:!!  :  Conantv.  u-;e,  but  in  respect  to  the  operation  of 
Rank,  I'-'l  Ind. :!.;>.  ".'l'  N.  K.  Rep.  LTiO;  .Mast  v.  which,  in  ])roducin;j  a  desired  result  under 
Pearce,  5S  Iowa,  .")7'.i,  s  N.  W.  Rep.  r>:i2,  and  particidar  circumstances,  the  buyer  found 
1:;  .\.  W.  Rep.  .5!)7;  Thompson  v,  Lihby,  84  ]  himself  disappointed.  In  short,  there  was 
Minn.  874, 'J(')  N.  W,  Ri'i).  1  ;  Wilson  v.  Deen,  no  express  warranty  that  the  machii:o 
74  .\  .  Y.  .5:51  ;  Robinson  v.  McNeill,  ;">!  III.L'iV  would  cool  I."i0.it00cublc  feet  of  atniosidiore 
FailluK  in  respect  of  the  alleged  e.xpress  to  40°  Fahrenheit,  or  any  other  temper- 
warranty,  plaintiff  in  error  ccmtends,  see-  ature,  without  referinice  to  the  construc- 
ondly,  that  there  was  an  implied  war-  tion  of  the  particular  lirewery  or  other 
ront.v,  arising  from  the  natureof  the  trans-  surroundinsr  circumstances,  and.  It  there 
actiiin.  that  the  machine  should  be  rea-  were  no  actual  warranty,  none  coidd  he 
sonably  lit  to  accomplish  certain  results,  imputed.  We  may  add  that,  in  the  light 
to  effect  which  he  insists  the  purchase  was  of  all  the  evidence  in  the  record,  treated  as 
made.  It  isargued  that  the  evidence  tend-  competent,  we  think  no  verdict  could  be 
I'd  to  establish  that  the  plaintiff  knew  that  permitted  to  stand  which  proceeded  upon 
the  defendant  had  been  cooling  his  brew-  the  ground  of  the  existence  of  such  a  war- 
cry  with  ice,  and  that  the  object  of  obtain-  raniy  as  is  contended  for.  The  alleged  an- 
ing  the  nuichine  was  to  render  unneces-  tecedent  representations  as  to  whether 
sary  tlie  expense  of  iiurchasing  ice  for  that  the  machine  possessed  siillicient  refrigerat- 
piirpose,  and  that  unle.-'s  the  machine  ing  l>ower  to  cool  this  brewery  were  no 
would  cool  it  to  the  same  extent,  or  about  more  than  expressions  of  opinion,  confes!*- 
the  same,  as  thy  ice  did,  it  would  be  edly  honestly  entertained,  and  dependent 
worthless,  so  far  as  he  was  concerned.  It  upon  other  elements  tiian  the  machine  Il- 
ls not  denied  that  the  machine  was  con-  self,  concrrning  which  plaintiff  In  error 
structed  for  refrigerating  purposes,  and  could  form  an  opinion  as  well  as  defend- 
that  it  worked  and  oiierated  as  a  refriger-  ant;  and  the  conduct  of  plaintiff  In  error 
ating  machine  should;  but  it  is  said  that  in  demanding,  twodays  after  the  contract 
it  did  not  HO  refrigerate  as  to  reduce  tlie  was  executed,  a  written  guaranty  that 
temperature  of  the  brewerv  to  40"Fahren-  the  machine  coni|>any  would  cool  hisbnlld- 
lieit,  or  to  a  temperature  which  would  Ing  to  :!S,"  Reaumur,  (or  4ii-  Fahrenheit.) 
enable  defeiidanl  to  dispense  with  the  pur-  and  keep  it  at  that  all  the  time,  ami  in  nc- 
chase  of  ice.  The  rule  invoked  is  that  quiescing  in  the  company 's  refusal  to  give 
where  a  manufacturercontracts  to  supply  the  guaranty  for  reasons  stated,  and  In 
an  article  which  he  manufactures,  to  be  thereupon  afterwards  ordering  thecoin- 
applied  to  a  particular  purpose,  so  that  pany  to  go  on  with  the  work,  as  exhllilt- 
the  buyer  necessarily  trusts  to  the  judg-  ed  in  the  correspondence  bet  wivn  rti<- par- 
ment  i")f  the  inanufne'turer,  the  law  imitlies  tics,  seems  to  us  to  jiistifv  no  otliercon- 
n  promise  orundertaking  on  his  part  that  elusion  than  that  reached  by  the  ver- 
the  article  so  manufactured  and  sold  by  j  diet.  The  judgment  of  the  circuit  court  Is 
him  for  a  specillc  |)iirpose,  and  to  be  used  nfflrmed. 
In  a    particidar  wav,  is  reasonably  lit  and 

liroperfor  the   pnrijo.se   for    which  he  pro-        Ruai.i.kv  and  «. hay,  .1.1,  were   not  ppeii- 

lesses   to    make    it",  and    for    which    it  is  ont  at  the  argument,  and  took  uo  part  In 
known  to  be   required;  but   it   Is  also  the  I  the  Ueclaiou  of  this  case. 


SEWELL  V.  BUHDICK. 


in 


BEWELL  et  al.  v.  BDRDICK  et  al. 

(10  App.  Cas.  74.) 

English  House  of  Lords.     Dec.  5,  18S4. 

Appfiil  liy  till-  ik'fendnntH  from  an  order 
of  till-  I'inii-t  of  iippuol'  i-fiversinjl  h  ileci 
Kidii  of  Kirld  .1.  Till-  factH  an-  fully  Ht-t  out 
ill  the  jiiilj;ii;ciit  of  Field  J.-  lirielly  they 
were  hH  fnlluWH  • — 

In  Si'ptcinher  Isso  NereeHsiantz  Hliip))ed 
ciiiicliinciy  on  the  rewpoiideii I'h  ship  to  lie 
eiiiilcd  Iriiiii  Loiiilon  to  I'oti  in  the  liliiek 
hcii,  under  l)illM  of  Indiii;;  wliereliy  the 
jroodH  were  nuide  deliveriildi- t<j  the  Hliip- 
per  or  iisKl;;nri,  treiii'it.  primage,  un<l  din- 
l]iii'He:nentH  to  bo  p.iid  at  deHtinution,  In 
ilcfivult  the  ownerH  or  a^ients  to  have  /in 
aliMohite  lien  on  the  noodw  and  liherty  to 
Ki'll  liy  auction  and  retain  fn-inht  and  all 
eh  irnes.  Tlie  bill.s  of  ladinsr  indorHeil  in 
Maiik  were  in  November  ISMI  rlcposited  by 
NiTeeHsiantz  with  tlie  apiiellantH,  bank- 
ers iu  Manchester,  UR  seeiirity  for  a  loan 
of  tUH)  advaiieeil  by  them  to  NercesHiMntz. 
The  HJiip  mean  while  liad  ariived  at  I'oti 
in  September,  and  the  yoodw  were  laii<led 
niid  \vareh<>use<l  at  the  Uiissian  ciiHtom- 
lioiise  in  October.  NerccKniantz  diwap- 
priired.  and  after  a  year  the  j;oo<ls  in  ac- 
cordance ivitli  l'u.«Kian  law  were  .sold  to 
pay  eustoni-liou.se  <luty  ami  eliarnes,  and 
rcaliy.eii  uo  more  than  enough  for  that 
purpose.  Meanwhile  the  appellant.s  hurl 
indorsed  tlie  bills  of  l.idiiiy;  to  their 
aRents  a  t 'I'itlis  with  instruitions  to  pro- 
tect their  interestH,  and  had  Informed  the 
Hliipowners  that  if  the  ^('odH  were  sohi 
to  pay  trciuht,  etj.,  the  ai'pellaiitselaimed 
all  the  proceeds  over  and  above  the 
amount  due  to  the  shipowners  for  fivisrht 
etc..  but  the  appellants  never  claimed  de- 
livery of  tlie  j;oods.  The  resjiondent  liav- 
Int:  brought  an  action  for  €174  ss.  Dd.  for 
frelulit  and  charges,  a^jainst  the  appel- 
biiits  as  indorsees  of  the  bills  of  lading:. 
Field  .1.  who  tried  tile  case  without  a  jury 
cave  judgment  for  the  defendants."'  TTie 
court  of  appi'al  ( Hrett,  .\1.  K.,  and  Ba«- 
Kallay.  L.  .1.,  Iloweii  L.  J.  diHsentinc)  «et 
aside  this  jiidnmeiit  and^ave  jud^iinent 
for  the  plaintifi  lor  the  amount  claimed. + 
The  ilcfeiidauts  appealed. 

Sir  F.  Ilerschell,  S.  (i.,  ( DanckwertH, 
with  him, I  for  appellants.  C.  Hall,  Q.  C, 
and  ICilwyn  Jone.s,  for  rec|)oudent. 

Karl  of  SKLUOK.N'i:,  !>.('.:— My  lords 
this  appeal  raises  llie  iiuestion  whellier 
under  tlii'  bills  of  ladins^  act  of  \<>'>  1 1N\-  I'.l 
Vict.  c.  Ill)  every  holder  of  a  bill  i>i  lad- 
in>r,  indorsed  in  lilank.  who  has  taken  il 
by  way  of  security  for  an  advaiiceof  mon- 
ev  (and  has  not  afterwards  parted  with 
It)  is  liable,  by  reason  of  such  indorsement 
only,  to  an  action  for  freight  by  the  ship- 
owner; although  he  may  not  have  ob- 
tained delivery  of  the^oods  orderivedany 
other  benelit  from  his  security. 

The  SToodH  in  this  case  were,  by  the 
terms  of  the   bill   of  ludinii,  delivHral)le   at 


'  13  Q.  B.  D.  ir)9. 
"UIQ,  H.  11.  ,1(13. 

"1(1  g.  H.  I).  :!(•>:(. 

« 13  (J.  13.  1>.  159. 


I'oti,  a  liuKsian  port  on  the  Itlark  iien,iiiid 
had  liccii  landed  and  warelioiised  (lu-relD 
a  public  warehouse  ( no  one  appearini;  to 
claim  or  take  cliarwe  of  tln-in  |  before  the 
date  of  the  inilorseiiient.  This  was  their 
position  when  the  prisent  action  wnn 
broui;lit  liy  the  respondent,  the  rihipown- 
er,  against  the  appellants,  who  were 
bankers  at  ManeheHtcr,  anil  who  had  ii'l- 
vanced  t;!(i,i  to  the  shipper  upon  the  secu- 
rity of  the  bill  of  lailiii^.  In  hisHta teuient 
of  claim  the  plaintur  alN-u'ed  that  the 
Koods  still  remaini-d  at  I'otl  umler  I  he 
v.irt_-  of  the  Russian  authoritii'M:  that  the 
plaintiff  hail  under  Kiissian  law  ni>  power 
of  selling;  them  for  the  purpose  of  paylni; 
hliiiKelf  the  amount  claimed  111  the  action 
(tl7t  Ss.  'Jd.  and  intcrcsti;  and  that  the 
Itiissiau  authoriticH  were  about  to  sell  the 
same  tor  a  sum  barely  suitioient  to  cover 
the  customs  duties  and  Koveranient 
chari^i'S  thereon.  Tlii-y  were,  in  tact,  sold 
by  tlie  itiissian  autlmrilii'S,  and  did  not 
realise  more  than  the  amount  of  those  du- 
ties and  charKCH. 

Fuller  theseclreiimstaneeH,  Field  .J  (  who 
tried  the  case  without  a  jury  )  ita  ve  jiiiIk- 
nient  for  tlie  defendants  (the  appelbintH 
here.)  That  jiidp;nient  was  reversed  by  n 
majority  ( Ilrett  M.  K.  and  Ha;:);anay  L>. 
J.)  of  the  Jud);es  in  the  court  uf  aiipeul. 
liowen  L.  .1.  dissentinjr. 

The  difference  tietween  thOHe  learned 
judues  mainly  (if  not  nltoRetherl  turned 
npoii  the  question,  whether,  accordlnir  to 
the  aiithiirities  from  IJckbarrow  v.  .Ma- 
son' downwards,  the  effect  of  an  Indorse- 
ment and  deposit  of  a  bill  of  lading,  while 
the  ;;oods  are  in  transitu,  l>y  way  of  si-rn- 
rity  for  a  loan,  in  to  pass  the  whole  leKal 
title  to  the  (joods.  or  only  to  pledge  tlieui, 
passin;;  at  law  a  "special  properly  "  and 
lea\iiiir  »he"t;eueral  [iroperty  "  in  the  ship- 
per. TTint  nuestion  was  much  deba  led  in 
(Myn  .Mills  &  Co.  v  East  and  West  India 
Dock  Company,"'  where  l<rett  \t.  .1.  ex- 
pressed the  same  opinion  on  whiih  he 
acted  in  the  present  case,  liramwell  I,. 
.1.  takiut;  the  opposite  view.  .My  uolile 
friend  Lord  Hlaekburu.  in  hix  opinion  on 
that  ca.se,  when  it  readied  this  house  ad- 
verted to  the  point  but  thought  It  unnec- 
essary to  express  any  opinion  upon  It." 

In  the  present  rase  the  true  i|iiestion  Ih 
whether  "the  property"  in  the  coods 
"passed  to  the  indorsee  upon  or  by  reason 
of  the  iudoisemeut,"  within  the  meiiiiiuK 
of  thos"!  words,  as  used  in  the  bills  of  lad- 
in;;  act  of  l>>:i."i?  It  »vas  considered  by 
llrett  M.  K.  and  Ha^^jallay  L.  .1.  that  It  the 
effect  of  the  iiiibirsemeii t  and  deposit  was 
(as  they  thoiiuhl)  to  pass  the  whole  heal 
title  tothe  jroods  to  the  appellants  as  in- 
dorsees, leavinir  an  equitable  interes;  on- 
ly ill  tliesliippei-.it  was  a  necessary  eonse- 
queiice  that  "the  property  passed"  to 
them  within  the  ineaniiitt  of  the  statute, 
and  that  the  respondent,  the  shipowner, 
was  entitled  to  recover  un.ler  the  statute 
in  this  action.  They  clearly  used  the 
words  "lesal"  and  "equltatile"  In  that 
technical  sense  which  they  have  acqulreJ 
in  Enulisb  law. 


•  1  Sm.  L.  C.  753,  8th  ed. 
•B  Q.  B   D.  4r.V 
'7  App.  Ciis.  IWHJ. 


714 


SEWELL  V.  BURDICK. 


I  am  not  in.VMolf  sntislipfl  that  this  con- 
sequence is  necessary  ;  Imt  1  ailinit  that 
there  are  dirticnlticH  in  the  way  of  the  con- 
trary view;  an  there  are  also  ditticnlties 
(arisins  from  the  strong  and  unciualified 
lansiiage  used  by  judges  of  great  authori- 
ty, from  the  time  wlien  Lickliarrow  v. 
Mason**  was  decided  downwards)  in  the 
way  of  the  opinion  that  an  indoraement 
auii  deposit  of  a  l)ill  of  lading  in  a  caselike 
the  present  oi)erates  by  way  of  pledge, 
and  not  as  an  assignment  of  the  whole 
legal  title  to  the  goods.  The  facts  her(< 
are  sinip.ly  an  indorsement  in  blank  and 
tietiosit  of  the  bills  of  lading,  so  indorsed, 
by  way  of  security  for  money  advanced. 
There  "are  no  special  circumstances,  ex- 
cept that  the  indorsee  never  did  obtain, 
and  that  it  was  never  possible  for  him  (in 
fact)  to  obtain,  delivery  of  the  g.)ods. 

I  should  not  feel  greatly  embarrassed  (if 
there  were  no  other  authority)  by  the  mere 
terms  in  which  the  custom  of  merchants 
was  found  in  Lickbarrow  v.  Mason  ;* 
namely,  that  "bills  of  lading  are  after  the 
shipment,  and  before  the  vo.vage  perforin- 
eil,  negotiableand  transferable  by  theship- 
per's  indorsement  and  delivery,  »  »  * 
and  that  by  such  indorsement  and  deliv- 
ery the  propert.v  in  such  goods  is  trans- 
ferred." This,  it  maybe  said,  is  the  lan- 
guage of  the  bills  of  lading  act.  But  I  do 
not  understand  it  as  nece8saril.v  meaning 
more  than  that  "the  property  "  which  it 
might  be  the  intent  of  the  transaction  to 
transfer,  whetherspecial  orgeneral.iiasses 
by  such  an  indorsement,  according  to  the 
custom  of  merchants.  The  finding  must 
be  reasonably  understood  ;  it  cannot  (lor 
instance)  mean  that  the  propert.v  will  be 
transferred  when  thereisnoeonsideration. 

But,  although  the  custom  as  tound 
seems  to  nie  to  beconsistent  with  the  view 
taken  by  Field  J.  and  Bo  wen  L.  J.  in  the 
present  case,  I  have  more  diliicult.y  in  say- 
ing that  the  language  of  Buller  J.  in  the 
earlier  stages  of  Lickbarrow  v.  Mason" 
is  HO.  And,  in  some  later  cases,  other 
great  judges  have  not  only  followed,  but 
have  even  gone  beyond  that  language. 
The  court  of  queen's  bench,  in  Ke  West- 
zinthus,io  held  that  a  right  of  stoppage  in 
transitu  might  be  exercised  ag.'oinst  the 
interest  remaining  in  the  shipper  subject 
to  the  security  created  by  an  inilorsement 
and  dei)oHit  of  the  bill  of  lading,  but  they 
did  so  on  the  ground,  not  that  the  ship- 
per retained  any  legal  title  or  interest,  but 
that  he  had  an  equity  of  redemption,  of 
which  theformin  which  the  question  then 
arose  enabled  the  court  to  take  notice. 
And,  although  it  is  true  that  in  Harris 
v.  Birchii  the  court  of  excheciuer,  then 
composed  of  Barons  Parke,  Alderson,  Gur- 
ney,  anil  Rolfe,  decided  a  question  of 
Rtamp  <lut,v  ur>on  the  ground  that  an  in- 
dorsement and  dp|)osit  of  a  bill  of  lading 
by  way  of  securit.v  operated  as  a  pledge, 
and  Coleridge  J.  in  Jenkyns  v.  Browne- 
considered  it  to  pass  a  special  property 
only   to  the  indorsee,  leaving  the  general 


«.5T.  R.  683. 

n  Sm.  L.  C.  75.3,  8th  ed. 
'».5  B.  &  Ad.  817. 
"9M.  &  W.  591. 
"  14  Q.  B.  503. 


property  in  the  shipper,  and  in  Meyerstcin 
V.  Barber'3  oil  the  judges  of  the  comuicui 
pleas  and  in  the  excheiiuer  chamber  con- 
curred in  that  view, — yet,  on  the  other 
hand,  when  Meyerstcin  v.  IJarbercame  to 
the  bouse  of  lords  (where  the  judgments 
of  those  courts  were  affirmed),  I^ord  llath- 
erley  and  Lord  Westbury  used  strong  lan- 
guage of  an  opposite  kind.  Lord  Hather- 
ley  said:  "  I(  anything  could  be  supposed 
to  be  settled  in  mei'cantile  law,  I  appi'i'- 
liend  it  would  be  this,  that,  when  goods 
are  at  sea  the  parting  with  the  bill  of 
lading  is  parting  with  the  ownership  of 
the  goods;"  and  afterwards,  "I  a|)pre- 
hend  that  it  would  shake  the  course  of 
proceeding  between  merchants,  as  sanc- 
tioned by  decided  cases,  if  we  were  t(» 
hold  that  the  assignment  of  the  bill  of 
lading,  the  goods  being  at  the  timeat  sea, 
does  not  pass  the  whole  and  complete 
ownership  of  the  goods,  so  that  any  per- 
son taking  a  subseciuent  bill  of  lading,  be 
it  the  second  or  be  it  the  third,  must  be 
content  to  submit  to  the  loss  which  would 
arise  from  the  state  of  facts."  These 
words  are  hardly,  if  at  all,  qualified  by 
the  context,  "so  that,"  etc.  although  in  a 
later  sentence  (as  to  which  see  the  re- 
marks of  Lord  Blackburn  in  7  Appeal 
Cases  page  0114),  the  ijroposition  is  less 
absolute:  "'When  the  vessel  is  at  sea,  and 
the  cargo  has  not  yet  arrived,  the  part- 
ing with  the  bill  of  lading  is  parting  with 
that  which  is  the  symbol  of  proi)erty,  and 
which  for  the  purpose  of  conveying  a  right 
and  interest  in  the  property,  is  the  prop- 
erty itself.  "It 

Lord  Westhury's  language  is  similar, 
perhaps  stronger:  "No  doubt"  (he  said) 
"the  transfer  of  it"  (the  bill  of  lading) 
"for  value  passes  the  absolute  property  in 
the  goods."  He  quoted  some  words  of 
Erie  C.  J  to  which  1  shall  afterwards  refer, 
as  having  the  same  sense;  he  spoke  of  tlie 
first  holder  for  value  of  the  bill  of  lading 
as  having  "the  legal  ownershi|)  of  the 
goods,"  "the  legal  right  in  the  pro]ierty," 
"both  the  right  of  property  and  the  right 
of  possession  passing  by  a  symbol,  ihe  bill 
of  lading,  wliich  is  a  I  once  both  the  symbol 
of  the  property  and  the  evidence  of  the 
right  of  jtossessiim. ">5 

To  reconcile  these  expressions  with 
those  used  in  the  same  case  by  the  judges 
of  the  common  pleas  and  in  the  exchequer 
chamber  is  scarcel.v  possible,  and  yet  no 
dissent  from  the  views  of  those  learned 
judges  was  expressed  in  this  house;  on 
the  contrar.v  their  reasoning,  and  espe- 
cially that  of  Willes  .1.,  was  referred  to  with 
apparent  apiirijval,  particularly  by  Lord 
Ilatherley  and  Lord  Chelmsford.  In  such 
a  contiict,  not  of  decisions  but  of  judicial 
phraseology,  if  not  doctrines,  it  becomes 
important  to  remember  that  it  is  often 
dangerous  to  infer,  even  from  very  strong 
words,  when  used  diverso  intuitu,  con- 
clusions on  other  subjects  which  if  they 
had  Iteen  pi-escnt  to  the  minds  of  the 
speakers,  might  perhaps  have  led  to  their 
being  more  guarded  or  qualified.  None  of 
the  cases  to  whic-li    I    have  referred    arose 


"Law  Rep.  3  C.  P.  3S,  B61. 
»  Law  Rep.  4  H.  L.  325,  326. 
"  Law  Rep.  4  H.  L.  335-337. 


SEWELL  0.  BUUDirK. 


715 


■npon  the  stntiito  with  wliieli  yiiur  loril- 
HliiiiH  have  now  Id  ileal,  tlii'.v  iclntcil, 
Home  ti)  llic  rii;lit  of  Htoiipa^in  In  transini. 
Home  to  roiii|ictiMi;  claliiiM  hetlveen  hold- 
erH  for  value  of  'liftei-eal  parts  of  the  Harne 
net  of  liill.s  of  lailiajj.  It  may  well  he  that, 
as  a^alast  ali  Hueli  elajniH.  anil  against 
partleH  Metlinir  up  interentH  ailveiHe  to  the 
title  of  the  InilorHee  for  value,  siieh  wonls 
iiH  "the  li'Kal  ownerHliip,"  "the  le^^iil 
rijilit,"  "the  rif;ht  of  property  In  the 
KooiIh,"  mi(iht  be  nHeil,  anil  the  property 
whieh  pawseil  to  the  Indorsee  nii>rht  lie  ile- 
suriheil  as  "  aliHolute"  in  a  sense  Hiihstan- 
tially  true,  even  thouKli  Hiich  (iroperty 
ml;;lit,  as  lietweeii  the  inilorsee  reeeiviun 
anil  the  shipper  depositing  (he  hill  of  lad- 
ing by  way  of  secniity.he  speelal  only  anil 
not  }xeneral  ;  and  thon^ih  the  most  apt 
term  for  a  si-iintilie  delinition  of  the  trnns- 
action  as  het  weeii  the  borrower  and  the 
lender,  mav  be,  not  nssiKninent  or  Irnns- 
fer,  hnt  pledge. 

It)  HiK'ii  a  state  of  authority  it  is  impor- 
tJint  to  see  how  the  matter  Htands in  prin- 
ciple. 

In  principle  the  custom  of  merchants  as 
found  in  I.icl<harro\v  v.  .Mason  seems  to 
he  as  much  applicahle  and  available  to 
jiass  a  speci.il  projierty  at  law  by  the  in- 
doi'senient  (when  that  is  the  intent  of  the 
fransnetion)  as  to  jiass  the  general  prop- 
erty when  the  trnnsaction  is,  e.  k.,  one  of 
sale.  In  principle  also  there  seems  to  be 
nothing  in  the  nature  of  a  conlrMct  to 
cive  seiiKlty  by  the  deliver.v  of  a  bill  of 
ladlnir  liidorHcd  in  blank,  which  reipiires 
ii;ore  in  order  to  tcive  it  full  effect,  than  n 
pleily:e  accompanied  by  Ji  power  to  obtain 
delivery  of  the  Koods  when  tliey  arrive, 
and  (if  necessary)  to  realize  them  for  the 
purpose  of  the  security.  Whether  the  in- 
dorsee when  he  takes  delivery  to  himself 
may  not  be  entitled  to  assume,  and  may 
not  I.e  helil  to  assume  towards  thesliip- 
owner,  the  (losilion  of  full  proprietor,  is  a 
different  (|uestion.  lint,  so  Ions  at  all 
events  as  they;oods  are  in  transitu,  there 
Heems  to  be  no  reason  why  the  shipficr's 
title  should  be  displaced  .■my  further  than 
thenntiiie  and  intent  of  the  transaction 
requires.  This  is  not  inconsistent  with 
what  was  said  by  ICrle,  (".  .1.  in  .Mcyerstein 
V.  Barbel', '•'  that  "the  inilorscmeiit  and 
delivery  of  the  bill  of  Indinir  while  tlie  ship 
is  at  sea,  operate  exactly  the  same  as  the 
delivery  of  the  u;oods  themselves  to  the 
ussisnee  after  the  ship's  arrival  would 
do."  'l'lu>  learned  judi^e  cannot  have 
meant  lluit  piissession  of  the  symbol  isfor 
every  purpose  the  same  thinjj  as  actual 
possession  of  the  floods :  what  he  did 
n\ean  was.  that  the  indorsement  and  de- 
livery of  the  bill  ofladinir  by  way  of  pledge 
(which  he  considered  to  be  the  effect  of  the 
transaction  in  that  case)  was  ei|uivalent, 
and  not  more  than  enuivalent.  to  n  deliv- 
ery by  way  of  pledge  of  till' ;;oods  them- 
selves. Lord  Hard wii'ke'"  thonjiht  that 
there  was  a  difference  between  an  indorse- 
ment of  a  bill  of  ladini;  in  blank  and  a  per- 
sonal indorsement,  and  (for  some  pur- 
]>oseH)  I  think  there  is  much  reason  for 
that  o|iiniun.     It,  from  a  personal  inilorsc- 

"baw  Hop.  2  C.  P.  4.-1. 
"Siico  V.  Prcscot.  1  Alk.  249. 


ment.  thf-  inference  ml;;ht  pro|)eily  ho 
ilr.iwn  that  a  title  liy  assignment,  as  dlH- 
tin^uislicd  from  pled;;e,  wiih  meant  to 
pass  to  the  Indoi'see,  It  would  not,  in  my 
opinion,  follow  that  the  same  inference 
ouKlit  to  be  drawn  from  an  indorsement 
in  l)lank.  J'art  of  tlie  custom  of  mer- 
chants, found  in  Lickbarrow  v.  .Mason,''* 
was  that  "IndorHementH  of  bills  of  lading 
in  blank  may  be  tilled  up  by  the  person  to 
wliom  they  are  delivered  or  t rnnsinitted, 
with  words  ordering  tlie  delivery  of  kooiIh 
to  be  made  to  sucli  person  :  and,  accord- 
inu:  to  the  practice  of  merchants,  the  Huir.e 
when  lilled  uj)  have  the  same  opera  tlon  hh 
if  it  had  been  done  by  tlie  sliipper." 
Whether  it  is  or  is  not  usual  in  practice  to 
(ill  up  the  Idaiik  with  any  name  before 
takin;t  delivery,  it  Ih  certainly  not  lo  lie 
implied  from  the  custom  as  thus  found 
tliat  the  operation  of  the  Indorsement, 
while  it  remaias  In  blank,  Is  necessarily  to 
all  intents  and  purposes  the  same  as  if  It 
were  lilled  up  with  the  holder's  name. 
So  loan  as  it  remains  in  blank  It  may  iiusH 
from  hand  tu  hand  by  mere  delivery,  or  it 
may  be  redelivered  to  the  shipper  witliont 
any  new  transfer  or  indorsement,  whirh 
would  not  be  the  case  if  there  were  a  per- 
sonal indorsement.  It  would  bestrani^e 
if  the  bills  of  lailin;;  act  has  made  n  per- 
son whose  name  has  never  been  upon  the 
bill  III  ladiiiii:,  and  who  (as  between  him- 
self and  the  shipo  wnei)  has  never  acted 
upon  it,  liable  to  an  action  by  the  ship- 
owner upon  a  contract  to  wliich  he  was 
not  a  parly. 

I  am  not  however  sure,  thai,  for  the  de- 
cision of  the  present  ajiiienl,  it  is  really 
necessary  to  rely,  either  upon  any  differ- 
ence between  a  personal  indorsement  and 
om-  in  blank,  or  upon  the  distinction  be- 
tween siich  a  form  of  secuiity  as  (in  Eng- 
lish lawl  miiiht  lie  lielil  t->  pass  the  whole 
le;;Ml  title,  and  a  simple  pledi-e. 

The  statute  with  which  your  lordships 
have  now  to  de.-il  is  introdnced  by  a  pre- 
amlile,  the  material  part  of  which  Is,  that 
"by  the  custom  of  merchants  n  bill  -if  lad- 
Ins  of  (loods  beinj-  I  ransfernbleby  indorHe- 
ment  the  property  in  the  >;ooils  may  there- 
by pass  to  the  indorsee,  but  nevertheless 
all  riulits  in  respect  of  the  contrnct  con- 
tained in  tlie  bill  of  bidini;  continue  in  the 
oriirinal  shippiT  or  owner,  and  it  is  expe- 
dient that  such  riiilits  should  pass  with 
the  property."  The  1st  section  enacts, 
that  "every  consiuiiep  of  );<>"<ls  named  in 
a  bill  111  ladinu.  and  every  indorsee  of  a 
bill  of  lailiiij:  to  whum  the  properly  in  the 
Roods  theicin  nientioiied  shall  pass,  upon 
orhyriasoa  ol  sucii  cm  slunment  or  in- 
dorsement, shall  have  transferred  to  and 
vested  in  him  all  riiihls  of  suit,  and  hesnb- 
ject  to  tlie  same  liabiliiies  in  respect  of 
such  iroods  as  if  the  contract  contained  In 
the  bill  of  ladlnK  had  been  made  with 
himself."  The  "Jnd  section  |irovides  that 
"nothinir  herein  contained  shall  prejudice 
or  affect  any  rlKht  of  stoppaire  in  transi- 
tu, or  any  rijiht  to  claim  freight  against 
the  orisinal  shipper  or  owner,  or  any  lia- 
bility o!  the  consignee  or  indorsee  by  ren- 
,8011  or  inconseipienceof  his  beliiK  suchron- 
al>;nee   or  Indorsi-e,  or  of  his  nvelpt  of  the 

'■5T.  R.  I1S3. 


716 


SEWELL  0.  BURDICK. 


floods  lij'  reason  or  in  consequence  of  such 
consitinnient  or  indorsement.''  Tliere  is 
notlilnK  else  niaterinl  in  tliat  act. 

The  statute  contemplates  the  passing  of 
"the  i)roi)erty  in  the  }jooil><"  by  the  in- 
dorsement of  the  bill  of  lading,  as  a 
tliinn  which  may, or  may  not,  happen,  ac- 
cordint;  to  the  nature  and  intent  of  the 
conli-.ict  or  d«*aliiis',  for  the  purpose  of 
wliich  that  indorsement  is  made;  and  it 
seen)s  to  provide  for  those  cases  only  in 
which  tlie  property  so  passes,  as  to  make 
it  just  and  convenient  that  all  rishts  of 
suit  under  the  contract  contained  in  the 
Ifillof  I  ad  int;  should  be"  transferred  to"  the 
indorsee,  and  should  not  any  longer  "con- 
tiuue  in  tlie  original  shipper  or  owner." 
One  test  of  the  application  of  the  statute 
may  perhaps  lie,  wliether,  according  to 
the  true  Intent  and  operation  of  the  con- 
tract between  the  shipper  and  the  in- 
dorsee, the  shipper  still  retains  any  such 
proprietary  right  in  the  goods,  as  to  make 
it  just  and  reasonalile  that  he  should  also 
retain  righis  of  suit  (the  word  is  suit,  not 
action)  against  the  shipowner,  under  tlie 
contract  contained  in  the  l)ill  of  lading. 
If  h-^  does,  the  statute  can  hardly  be  in- 
tended t()  take  from  him  those  rights,  and 
transfer  tlicm  to  the  iadorsee.  If  they  ore 
not  transferred  to  the  indorsee,  neither  is 
the  indorsee  sulijected  to  the  shippers 
liabilities. 

It  is  very  difflcnlt  to  conceive  that  vvhen 
the  goods  are  still  in  transitu,  when  the 
substance  of  the  contract  is  not  sale  and 
])urchase,  but  borrowing  and  lending,  and 
when  tlie  indorsement  and  deposit  of  the 
bill  of  lading  is  only  by  w  ay  of  security  for 
a  loan,  it  can  be  the  intention  of  either 
party  thereli.y,  without  more,  to  divest 
tlie  shipper  of  all  tirojirietary  right  to  the 
goods,  and  to  take  from  him  and  transfer 
to  the  indorsee  all  rights  of  suit  under  the 
contract  with  the  shipowner.  That  some 
proprietary  right  (his  original  right,  sub- 
ject only  to  the  creditor's  security)  re- 
mains in  him  is  indisputablB.  If  that 
proposition  needed  illustration  from  au- 
thority it  would  be  found  in  the  cases  of 
Re  Westzinthus,i»  Spalding  v.  Itnding.^o 
and  Kemp  v.  Falk.^i  Can  it  be  that  he 
is  by  the  statute  dei)rived  of  all  remedies, 
legal  and  e(]uitable,  under  the  bill  of  lad- 
ing, as  long  as  it  remains  in  the  liands  of 
the  secured  cre<litor'?  The  creditor,  in  the 
ordinary  course  of  tliines,  will  do  nothing 
until  the  time  for  payment  or  delivery  of 
the  goods  .nrrives.  Can  it  then  be  mate 
rial  whether  the  proprietary  right,  thus 
remaining  in  the  shipper  while  the  goods 
are  in  transitu,  is  legal  orequitable?  The 
statute  relates  to  a  subject  of  general  mer- 
cantile law,  in  which  not  Englishmen  (inly 
but  foreigners  also  may  lie,  and  often  are, 
C(mcerned.  Foreign  as  well  as  British  in- 
dorsements of  liills  of  lading  by  way  of  se- 
curity for  advances  (which  may  be  made 
abroad,  perhaps  in  countries  notgoverned 
by  English  laws)  are  lialile  to  be  affected 
by  it,  whenever  recourse  must  be  had  to 
British  courts.  It  seems  to  iiie  to  be  in- 
conceivable that  the  construction    of   the 


words  "the  propert.y  in  the  goods,"  in 
such  a  statute  can  liave  been  intended  to 
depend  upon  an.y  such  rechnical  distinction 
as  that  made  in  English  law  (but  by  no 
means  in  the  laws  of  all  other  countries  in 
which  the  customs  of  merchants  prevail) 
between  legal  and  equitable  titles. 

It  is  to  be  observed  furtlier  that  the 
statute  contemplates  beneficinm  cum 
onere  and  not  onus  sine  lienelicio.  It 
may  be  rensoiialilo  if  the  indorsee  has  the 
benefit  (as  he  would  if  he  wore  a  purchaser 
out  and  out,  or  it  under  his  title  as  in- 
dorsee of  the  bill  of  lading  ho  obtained' 
delivery  of  the  goods  to  himself),  that  he 
should  take  it  with  Its  corresponding  bur- 
den, quoad  the  shipowner.  But  it  would 
lie  the  reverse  of  reasonable  to  impose 
upon  him  such  a  burden,  wlien  he  h»s 
neither  entered  into  any  contract  of  which 
it  might  be  the  natural  resnli,  nor  (hav- 
ing taken  a  mere  securit.y)  has  obtained 
any  benefit  from  it.  This  oliservation  is 
fortiheil  by  the  fact  that  the  statute  does 
not  ajipear  to  distinguish  betwien  in- 
dorsements subsequentund  those  anterior 
to  its  enactment. 

On  the  other  hand  it  seems  impossible 
to  suiiiKise  the  legislature  to  ha ve  jiassed 
this  statute  without  some  reference  to 
the  custom  proved  in  Liickbarrovv  v  Ma- 
son, and  to  the  law  (whatever  may  lie- 
the  true  view  uf  it)  estal)lislied  on  the 
same  suliject  by  later  authorities  in  the 
English  courts.  And  if  (as  I  think)  it 
ought  to  lie  understood  with  some  refer- 
ence to  that  custom  and  to  those  author- 
ities, I  cann<it  [lersuade  myself  that  Its 
operation  is  altogether  restricted  to  cases 
of  out  and  out  sale,  or  that  an  indorsee 
of  a  bill  of  lading  by  way  of  security,  who 
converts  his  synilKdical  into  real  posses- 
sion liy  oiitaiuing  lielivery  of  the  goods, 
ought  never  to  ileriva  any  benelit  from  it. 
The  authorities  decided  upon  tlie  statute 
itself  appear  tome  to  be  most  easily  recon- 
ciled witli  its  apparent  objects,  mid  with 
e;?ch  other,  by  a  view  whioli,  if  hardly 
consistent  with  expressions  to  be  found 
in  some  other  cases,  nevertheless  seeins 
to  me  to  have  a  real  and  substantial 
foundation  in  reason  and  good  sense;  viz. 
that  the  indorsee  by  way  of  security, 
though  not  having  "the  property"  passed 
to  him  alisolutely  and  for  all  pmiioses  i>.y 
the  mere  indorsement  and  delivery  of  the 
bill  of  lading  while  the  goods  are  at  sea, 
has  a  title  tiy  means  of  wliich  he  is  en- 
abled to  take  the  position  of  full  pro- 
prietor upon  himself,  with  its  corres|iond- 
ing  burdens,  if  he  thinks  fit;  and  that  he 
actually  does  so  as  between  himself  and 
the  sliiriowner,  if  and  when  he  claims  and 
takes  delivery  of  tlie  goods  by  virtue  of 
that  title.  The  authorities  decided  upon 
the  statute  are  Fox  v.  Nott^a,  .Sinnrth- 
waite  v.  Wilkins23,  The  Figlia  MaggioreSi, 
and  The  Freedom^-").  Another  case,  Hhcrt 
V.  Simpson^",  was  also  cited  during  the 
argument  at  vour  lordships'  bar. 

In  Fox    V.  Nott    lA.  D.    I8«l)    the    only 


"5  B.  &  Ad.  817. 

»6  Beav.  376. 

'■  7  App.  Cas.  573. 


=2(1  H.  &N.  637. 

=»11  C.  B.  (N.  S.)  S-47. 

"  Law  Rep.  2  A.  &  E.  108. 

"  Law  Rep.  3  P.  C.  504. 

=«  Law  Rep.  1  C.  P.  24S. 


SEWELL  V.  BURDICK. 


^17 


qiu'Htidn  (letertnineil  was,  that  the  Hhiii-' 
uwinT  rctaiiind  IiIh  renioily  liy  acliori 
jijiiiiiiHt  tlR"  Kliippcr.  after  thn  inclorHciiicnt 
<if  llie  liill  (jf  ladiiiji  (a  oasi"  providt'd  for 
liy  till-  'Jnd  Hf>cti(iiii:  lint  Home  (jf  tlip 
leai'ML'il  jiidH;cH  exiiresHfd  upinluiiH  ln'Mriiit; 
ii|ioii  the  general  construction  of  tl'eHtat- 
iite.  I'ollocl;  (.'.  I?.  Maid.  "Tlie  indopKce  of 
the  bill  of  liidiiiK  xiay  lie  Kiied  under  the 
HtMtiile,  liecauKc  liy  taking  the  ;?oodH  he 
aJHo  takeH  the  lialillity  to  the  frei^^ht." 
Miirlin  I!,  said,  "  The  Htatntc  meauH  an 
actual  vestin^r  of  the  property  an  liy  ha r- 
Kain  anil  .sale;"  anil  Wilde  15.  Kaid.  "  1 
a)iree  with  my  Urotliei-  Martin  that  the , 
act  applies  only  to  an  alisoUile  iransfer 
of  the  K""'l^.  and  was  never  in  tended  to 
deprive  a  pcismi  who  made  advances  on 
the  HiTurity  of  the  liiil  of  lulling  of  the 
liemlit  of  the  oriuinal  ciintract  of  the 
Hhipper  to  pav  the  freijiht." 

In  Smurthwaite  v.  WilUins  (A.  D.  1S(;2) 
the  indorsee  oi  a  iiill  of  lading,  who  liad 
indorsed  it  over  to  a  third  party,  was 
held  not  to  lie  lial.le  to  the  Hhipowner. 
Erie  L'.  J.  said.  "  Tlie  eonteniiiin  on  the 
part  of  the  plaintiff  is,  that,  the  property 
in  the  jXKO'ls  passing  to  the  defendants  l).\ 
the  asHignmeiit  of  the  liill  of  lading;,  under 
tlie  act,  they  are  liable  tor  the  freight,  al- 
thouK'i  they  never  received  the  goods. 
•  *  *  Th?  contention  is,  that  the  con- 
signee or  assignee  shall  alwa.vs  remain 
liable,  liUe  the  cunsignor,  although  he  has 
parted  with  all  interest  and  property  in 
the  goods  bj-  assigning  the  bill  of  lading 
to  a  third  iiarty,  before  the  arrival  of  tlu' 
goods.  The  lonsiiini'iii'i's  which  this 
Would  lead  to  are  so  monstrous,  so  mani- 
festly unjust,  that  I  slniuld  pause  before  I 
consented  to  adopt  this  construction  of 
the  act  of  parliament.  The  person  who 
received  the  goods  was  always  consid- 
ered liable  for  the  freight:  but  that  was 
not  by  virtue  of  an  original  liabilit.v  as  a 
contracting  party,  but  on  a  contract  im- 
plied from  his  acce|itaiice  of  the  goods. 
Looking  at  the  whole  statute,  it  seems  to 
nie  that  the  obvious  meaning  is,  that  the 
assimiee  it/jo  receii-i's  the  airf^o"  (the 
italics  are  in  the  report)  "shall  have  all 
the  rights  and  liabilities  of  a  contracting 
party;  but  that,  if  he  passes  on  the  bill  of 
lading  by  indorsement  to  another,  he 
passes  on"  all  the  rights  and  liabilities 
which  the  bill  of  lading  carries  with  it." 
Sir  ]•;.  Vaughan  Willianis  agreed.  "  Loo'-c- 
ing"(hesaid  "at  the  preamble,  and  at 
the  general  scope  and  intention  of  the 
statute,  I  can  entertain  no  doubt  that 
the  view  presented  by  my  lord  is  the  true 
one:"  and  he  explained  the  effect  of  "  the 
general  scope"  of  the  act  to  be,  "that, 
where  the  right  of  property  leaves  the 
party,  tlie  rights  ami  liabilities  under  the 
contract  leave  him  also."  .\  case  like  the 
pri'sent,  of  a  security  on  an  indorsed  bill 
of  lading,  not  acted  upon  (and  which,  in 
fact,  never  could  be  ncte;l  upon)  by  tak- 
ing delivery  of  the  goods,  but  at  the  some 
time  not  transferred  to  any  other  per- 
son, differs  (in  speoie)  from  that  of  a  man 
who  has  transferred  the  bill  of  lading  by 
indorsing  it  over  to  another.  Hut  I  can- 
not see  that  it  would  tie  more  reasonable 
to  make  the  holder  of  such  a  security, 
which  he  has  never  realized,  and  never  can 


realize,  liable  under  the  statute,  than  if 
he  had  parted  with  the  bill  of  ladiiii;  to 
somebody  else. 

The  cases  of  The  P'lglia  Maggiore  and 
The  Freedom  weredeterinined  in  the  court 
of  adinii-alty  under  nnotherHtatutc,  wlilcl. 
(as  l>r.  Lushinuton  and  his  succcHHor,  in 
my  opinion,  rightly  held)  gave  that  court 
jurisdiction  when,  and  only  when,  there 
was.  Independently  of  that  statute,  n 
right  of  action  or  suit;  and.  In  those  par- 
ticular cases,  it  appears  to  have  buen 
held,  that  there  was  no  such  right  of  ac- 
tion or  suit,  unless  it  was  given  liy  the 
bills  of  lading  act.  In  both  of  Iheiii  the 
[ilaiiitiffs.  indorsees  by  way  of  security  of 
bills  of  lading,  had  claimt-d  and  obtaineil 
delivery  of  the  goo'ls,  and  then  hail 
brcnght  actions  against  the  shipowniTH 
for  damages  wiiich  they  had  su^taine<l 
through  breaches  of  the  contracts  cun- 
taineil  in  the  bills  of  lading;  and  they 
were  held  entitled  to  recover.  Ihis  wad 
right  if  an  indorsee  under  such  circ-uin- 
stances  may  rightly  he  hcldentilled  t<i  the 
benefit  of  the  statute,  as  having  elected 
to  complete  hin  potential  and  inchoate 
title  by  taking  possession  of  the  goods, 
and  so  placing  himself  towards  the  ship- 
owner in  the  [losition  of  proprietor.  .May 
It  not  be  said  tliat"the  property  in  the 
goods"  then  (if  not  before  I  "  passes"  to 
him  "  by  reason  of  the  indorsement"?  The 
Iirinciple  of  the  liability,  which  umler 
some  "ircumstances  was  held,  even  before 
the  statute,  to  nttach  to  the  indorsee  tak- 
ing dsliver.v,  was  regarded  by  ICrle  ('.  J. 
in  Snuirtliwaite  v.  Wilkins  as  elucidating 
the  iiolicv  aad  the  objects  of  the  statute 
itself;  and  both  he,  and  I'ollock  C.  It.  In 
Fox  V.  Xott  8|)oke  of  "  taking  the  goods,  " 
and  "receiving  the  cargo,"  as  the  test  of 
its  r.pplication.  The  nuthorities  on  that 
suliject  iJesson  v.  Solly  ;2"  Stindt  v.  Itob- 
erts;-8  Wegener  v.  .Smith  ;2"  Chappel  v. 
Comfort^"  seem  from  this  point  of  view 
to  deserve  conshleration. 

The  decision  in  the  court  of  ndiniralty  in 
the  case  of  The  Freedom  was  allirined  liy 
her  majesty  in  council,  upon  the  advice  of 
the  judicial  committee,  and  nltlnuigh  it 
was  on  a  point  as  to  which  the  admirnlty 
had  only  a  statut.iry  jurisdiction  concur- 
rent with  the  courts  ol  common  law,  and 
thoimh  in  all  Kiiglish  admiralty  cases  the 
appeal  now  lies  to  this  hoiist ,  still  this,  as 
the  decision  of  a  court  of  linal  appeal, 
ought  not,  in  any  later  case,  to  be  lightly 
departed  from. 

The  case  of  Short  V,  Simpson^'  <lid  not 
really  require  anything  to  be  decided  aa 
to  tlie  effrct  of  the  statute,  and  nothing 
was  in  fact  so  decided.  It  was  there  hi  hi 
that.nuocnniiue  moilo.  whether  under  the 
statute  or  Independen'ly  of  the  statute 
the  shi|)per.  to  whom  a  bill  of  lading 
which  he  had  indorsed  and  delivered  to 
his  creditor  by  way  of  security  was  reln- 
dorseil  and  redelivered  ui>on  payiuent  of 
tlie  loan,  was  remitted  to  his  original 
rights.  

«'4  Taunt.  53. 
»1TL.  J.  (Q.  B.)  166. 
» 15  C.  B.  285. 
»1(1C.  B.  (N.  S.)  Si>3. 
>'  Law  Ucp.  1  C.  r.  243 


718 


SEWELL  V.  BURDICK. 


Uijon  the  wliole  I  cnnnot  diHsenilile  that 
thi.s  case  api'ears  to  nie  to  t)d  utteiuleil 
with  some  coiisideralile  difficulties.  But 
tliose  (litficulties  are  mainly  technical,  aris- 
iiiS  out  of  a  comparison  of  the  lanKiiase 
of  tlies  til  lute  witli  various  ami  not  always 
cousiMtent  forms  of  exjiression  found 
in  authorities  not  decidud  witli  a  view 
to  any  such  eonsetitiences  as  those  which 
tlie  statute  would  produce.  'J'liey  deal 
with  questions  between  unpaid  vendors 
of  Koods  comprised  in  l)ills  of  lading  and 
bin\a  fide  indorsees  of  the  same  hills  of 
ladins;  for  value,  or  between  compciins 
and  adverse  claimants  toiiriority  as  bona 
tide  liolders  for  value  of  the  bills  of  lad- 
ing tliems(>lves.  The  statute,  on  the  other 
hand,  deals  with  questions  between  ship- 
pers and  indorsees  of  bills  of  lading;  claini- 
injj;  under  them,  and  lietween  indorsees 
and  sliipowners.  The  i)reponderance  of 
princii)le  and  reason  appears  to  me  to  be 
against  the  jtroposition,  that,  as  between 
those  parties,  it  can  liave  been  intended 
by,  or  can  he  the  effect  of,  the  statute  to 
make  the  creditor  of  the  sliipper  liable  (in 
effect)  as  his  surety  to  the  shipowner 
(with  whom  he  was  never t)rousl't  in  coii- 
tact),  by  reason  onl.v  of  the  deposit  with 
him,  by  way  of  security,  of  a  bill  of  lading 
indorsed  in  blank;  his  rijiht  under  tliat 
deposit,  being  (whether  at  law  or  in  eq- 
uity) special  and  not  general,  and  the 
shipper  retaining  ( whether  at  law  or  in 
equity)  the  real  and  substantial  property 
in  the  goods,  subject  to  the  security.  It 
had  not,  until  the  present  case,  been  di- 
rectlj'  or  indirectly  determined  b.v  any 
authority  that  such  is  the  effect  of  tlie 
statute. 

My  conclusion  is,  that  the  appellants 
ought  to  be  exonerated  by  your  lordships' 
judginent  from  the  respondent's  ncti(jn  ; 
and  that  the  order  of  the  court  of  appeal 
ought  to  he  reversed,  with  costs. 

Lord  BLACKBURN  :-My  lord^,  the 
jugdnient  of  Field  J.  was  reverse<l  by  tne 
order  now  under  ap|)eal.  The  case  was 
tried  l)efore  liim  witliout  a  jury,  and  I 
think  it  is  necessary  to  see  what  he  had 
to  determine.  There  was  no  question  be- 
tween vendor  and  vendee,  nor  of  stoppage 
in  transitu,  raised,  for  there  was  neither  a 
vendor  nor  a  stoppage.  The  law  and  de- 
cisions as  To  stoppage  in  transitu  might 
he  relevant  in  construing  tlie  statute  IS  & 
19  Vict.  c.  Ill,  but  did  not  otherwise  affect 
the  rights  of  the  parties. 

It  will  be  seen  bj'  refeience  to  the  state- 
nientof  claim  and  of  defeucethat  it  wasnot 
suggested  that  the  defendants  were,  at  the 
time  tlie  goods  were  shipped,  in  any  way 
interested  in  thegoods;  nor  that  tlie.v  were, 
either  as  undisclosed  principals  or  other- 
wise, parties  to  the  contract  in  the  bill  of 
lading  until  it  was  delivered  to  them,  after 
the  ship  had  sailed  and  the  goods  were  iu 
thehand  of  theshipowners  to  becarried  un- 
der the  bill  of  lading  and  were  not  yet  de- 
livereil,  with  an  indorsement  in  blank  by 
Nercessiantz,  the  consignee  named  in  the 
bill  of  lading. 

]  ilo  not  think  that,eitherat  the  trial  or 
on  the  argument,  it  was  at  all  disputed 
tliat  at  common  la  w  the  remedy  of  the  ship- 
owner under  a  bill  of   lading    was   by   en- 


forcing his  lien  upon  the  goods,  or  bv 
liringing  an  action  on  thecontract  against 
any  one  who,  at  the  time  when  thegoods 
were  shi|iped,  was  a  party  to  the  bill  ol 
lading,  eitiier  as  being  on  the  face  of  it  a 
contracting  party,  or  as  being  an  unilis- 
closed  principal  of  such  a  party.  In  either 
of  these  cases  he  might  be  sued  as  having 
been  from  the  beginning  a  party  to  the 
contract. 

Some  attempts  had  been  made  to  say 
tliat  the  contract  in  a  hill  of  lading  might, 
under  some  circumstances  at  least,  be 
transferred  to  an  assignee  in  a  manner 
analogous  to  that  in  which  thecontract 
in  a  bill  of  exchange  was  transferred  by 
the  indorsement  of  the  bill  of  exchange; 
but  I  think  since  the  decision  in  Thomp- 
son V.  Dominyss  jn  ]s-l.'),  it  has  been  undis- 
puted law  that  under  no  circumstances 
could  any  one  not  a  party  to  the  contract 
from  the  beginning  sue  on  it  in  his  own 
name.  Any  action  on  the  contract  at 
common  law  must  be  brought  in  thename 
of  an  original  contractor,  and  no  action 
could  be  brought  on  the  contract  against 
one  who  was  not  liable  to  be  sued  as  an 
original  contractor. 

Batten  years  later  the  IS  &  19  Vict,  c. 
Ill,  was  passed.  The  preamble  states  this 
as  one  of  the  objects  which  the  legisla- 
ture had  in  view,  "  Whereas  by  the  custom 
of  merchants  a  bill  of  lading  being  trans- 
ferable by  indorsement  the  propert.v  in 
the  goods  maj'  thereby  pass  to  the  in- 
dorsee" (which  I  think  for  a  long  time  be- 
fore the  18  &  19  Vict.  A.  D.  ls.i5  was  undis- 
pute<l),"but  nevertheless  all  rights  in  re- 
spect of  the  contract  contained  in  the  bill 
of  lading  continue  in  the  original  shipjier 
or  owner"  I  this,  it  is  to  my  mind  clear, 
refers  to  Thompson  v.  Dotniny  )3-,  "and  it 
is  expedient  that  such  rights  should  pass 
with  the  property." 

The  moiie  in  wliich  the  legislature  carry 
out  the  ol)ject  thus  expresseil  in  the  pre- 
amble is  b.v  sect.  1  :  P^ver.v  consignee  of 
goods  named  in  a  bill  of  lading,  and  every 
indorsee  of  a  bill  of  lading,  to  whom  the 
property  in  the  goods  therein  mentioned 
shall  pass  upon  or  by  reason  of  such  con- 
signment or  indorsement,  shall  have 
transferred  to  and  vested  in  him  all  rights 
of  suit,  and  lie  subject  to  the  same  liabil- 
ities in  respect  of  such  goods  as  if  the  con- 
tract contained  in  the  bill  of  lading  had 
been  made  with  himself." 

The  case  made  on  thestatement  of  claim 
was  that  "the"  projierty  had  passed  upon 
or  b.v  reason  of  the  indorsement  to  the  de- 
fendants. Not  that  they  were  before  that 
a  party  to  the  contract  in  the  bill  of  lad- 
ing, biit  that  by  virtue  of  the  act  IS  &  19 
Vict,  when  the  property  passed  they  be- 
came subject  to  the  same  liabilities  as  if 
the  contract  contained  in  tlie  bill  of  lading 
had  been  made  with  themselves. 

It  is  not  disputed  that  the  delivery  of 
the  bill  of  lading  to  the  defendants  with 
the  indorsement  of  the  consignee  on  it  in 
blank  was  an  indorsement,  nor  that 
whatever  interest  then  passed  to  them 
still  remained  in  them.  What  was  in 
issue  ivas  whether  upon  or  by  reason  of 
that   indorsement  "the"  p'-operty  passed. 


=  14  M.  &  W.  403. 


SEWELL  V.  BUR  DICK. 


719 


The  firHt  niid  most  important  (inestiun 
to  be  <leciil('(l  in  tliis  cane  Ih,  what  jh  Hit- 
true  conHlnK-Uon  of  18  &•  111  V  ict.  c.  HI '.' 
l)(iPK"tlrc  iiroperty "  In  the  goodn  there 
mciin  any  lej;iil  property  in  tliej^oodH:  ho 
uH  to  lie  KiitiKlieil  l)y  proof  that  n  leiial 
property  pashed  accompanied  liy  u  rl^rht 
of  poKseHsion  ho  i\»  to  entitle  the  trans- 
feree to  maintain  trovei-,  tlioutrh  it  was 
Intendeil  l).v  tlie  partieM.  and  w  uh  as  be- 
tween tlieni,  to  l)e  l)y  way  of  Hecurity 
oidy,  the  traiiwferor  retaininir  a  rislit  of 
redemption  either  l)y  way  of  a  eonimon 
law  retention  of  the  fieneral  property, 
thon^h  tlie  iiledjtep  had  a  ri^lit  to  the 
pOHscHsion  and  a  property  as  pled;ieo.  a 
rijiht  exceeding  a  lien:  or  the  wi)ole  prop- 
erty at  law  liuvinf;  passed  l)y  way  of 
mortuMfie  the  transferor  retaining  an 
(•(liiity  of  redemption,  »vhieli  in  iN.'i")  was 
an  e(|nital)le  rij^ht,  ei)foreeal)le  only  in  a 
toiirl  of  einiily '.' 

I  thinit  tiiat  all  the  jixlRes  below  were 
of  opinion  that  if  the  litcht  reserved  was 
the  Keneial  riy;ht  to  the  property  at  law, 
what  was  transferred  beiiijr  only  a  idedae 
(conveying  no  doiil)t  a  ri^ht  of  properly 
and  an  immeiliate  ri(;lit  to  tlie  possession, 
ho  that  the  transferee  would  be  entitled 
to  brin;;  an  action  at  law  against  any 
one  who  wron^fnlly  interfered  with  his 
ri»;lit).  thonj^h  ".•("  property,  nn<l  "a" 
property  a^iiinst  the  indorser,  passed 
"npon  and  by  reason  ot  the  indorsement," 
yet  the  prooi'rty  did  not  pass.  And  1 
a);ree  with  them.  I  do  not  at  all  proceed 
on  the  Ki'onnd  that  this  Ix'iiiK  an  indui-se- 
ment  in  l)laiiU  followed  by  a  delivery  of 
the  l:ill  of  lading;  so  indorsed,  had  any 
different  effect  from  what  wonld  have 
lieen  the  effect  if  it  lia<l  lieen  an  indorse- 
ment to  the  appellants  by  name. 

The  case  of  The  Freedom  was  cited, 
and  1  thinii  there  are  expressions  used  in 
the  jiidKiiicnt  delivered  in  that  case  by  Sir 
.lo.seph  .Napier  which  indicate  tliat  the 
judicial  committee  were  not  of  that  opin- 
ion. It  is  said  (Law  Ke|>.  'i  P.  C  p.  .'lilll), 
"The  plaintiffs  were  consimieps  for  sale; 
but  as  part  of  the  transaction  a  bill  of  ex- 
chanjie  was  ilra wn  by  t he  consi^jnors  for 
nearly  the  fall  value  of  the  K'>ods,  the  bills 
of  liidinfr  were  indorsed  liy  them  and  for- 
warded to  the  plaintiffs,  by  wliom  the 
draft  of  the  consignors  was  accei)ted  and 
paid  in  due  course."  If  that  was  the 
transaction  (siiid  whether  it  was  so  or 
not,  the  judicial  committee  prt)ceeded  on 
the  assiiniptlon  that  suth  was  the  trans- 
action), the  plaintiffs  in  The  Freedom 
were  in  exactly  the  iiosition  of  Clinrch,  in 
the  case  of  Newson  v.  Thornton'''',  the 
case  to  which  I  shall  ha  ve  to  refer  nftsr- 
wurds.  Church  had  th?  1)111  of  ladiiiK  in- 
tlorsed  to  liiin  as  a  factor,  or  consignee 
for  sale,  and  hail  therefore  a  ri>rlit  to  iKdd 
the  Koods  as  against  the  indorser  as  a 
security  for  all  IiIh  ad vances,  and  he  had 
aiithorit.v  at  common  law  t<i  sell  the 
Koods,  and  before  the  arrival  of  the  ship 
to  transfer  the  bill  of  IndlnK  in  further- 
ance of  a  sale,  but  he  had  no  authority  to 
pledge  either  the  goods  or  the  hill  (if  lad- 
ing.    It   is  true  that   by  the  factors' acts 


tlie  plaintiffs  in  The  Freedom  would  hove 
had  a  power,  which  Church  had  not,  to 
pledge  the  bill  of  ladinu,  but  as  they  did 
not  exercise  thai-,  power  it  could  make  no 
difference. 

'Ihe  juilKment  then  proci-eds:  "Thelecal 
title  to  the  property  In  the  goods  Hpecitied 
in  the  bills  of  lading  was  thus  transferred 
t(j  and  vested  in  tlie  plaintiffs;  the  riiiht 
of  suing  upon  the  contract  in  the  bills  of 
lading  was  transferred  to  tluin  by  force 
of  the  statute  Is  &  l!l  Vict.  c.  1 1 1.  "  The 
juilgment  then  proceeds  to  shew,  I  think 
correctly,  that  the  dictum  of  .Martin  11., 
reported  in  Fox  v.  Nott  was  nut  neces- 
sary for  the  ilecision  in  Fox  v.  Nott,  and 
goes  on:  "Their  lordships  are  sallslied 
Hint  it  was  intended  liy  this  act  that  the 
rlKht  of  suing  upon  the  contract  nniler  a 
bill  of  lading  should  follow  the  property 
in  the  goods  therein  specitied  ;  that  is  li) 
say,  the  legal  title  to  the  goods  as  against 
the  indorser."  It  certainly  seems  to  me 
that  their  lordships  thought  that  "Ilie" 
property  passed  witliin  the  meaning  of  IS 
&  1'.)  Vict.  c.  Ill,  if  any  legal  right  to  hold 
as  against  the  indorser  passed. 

The  statute  which  their  lordships  had 
to  construe  was  the  L'4  Viet.  c.  10  s.  C. 
which  is  in  these  terms,  "The  hi;:li  court 
of  odmiraltv  shall  have  jurisdiction  over 
any  claim  by  the  owner"  (1.  e.  of  the 
goods)  "or  consignee  or  assignee  of  any 
bill  of  lading  of  any  goods  carried  Into 
anv  port  in  England  or  Wales  in  any 
ship,  (or  damage  done  to  the  goods  or 
nny  part  thereof  by  the  negligence  or  mis- 
conduct  of  or  for  any  breach  of  duty  or 
breach  of  contract  on  the  part  of  the 
owner,  master,  or  crew  of  the  ship,  unless 
it  is  sliewn  to  the  sati.sfaction  of  the  ccurt 
that  at  the  time  of  the  institution  of  the 
cause  any  owner  or  (inrt  owner  of  the 
ship  is  domiciled  in  Fngland  or  Wales." 
It  is  not  necessary  to  put  a  construction 
on  I'-l  Vict.  c.  HI  s.  fi. 

1  tliirik  there  are  very  good  reasons  for 
contending  that  n  person  who  has  pos- 
session of  an  indorsed  bill  of  lading  witli- 
oiit  any  rit;lit  at  all  to  hold  it  against  the 
indorser,  without  being  owner  of  any  In- 
terest in  tlie  gooiis,  is  not  an  "assignee" 
within  the  meaning  of  this  enactment, 
and  conse(iiiently  that  what  1  understand 
to  lie  the  actual  decision  of  Dr.  I.nshing- 
ton  in  The  St.  Cloud'",  that  such  a  person 
could  not  sue  umler  the  admirnlly  act. 
may  have  been  rielit  enough.  It  Is  not 
necessary  to  decide  that.  Itut  I  agree 
with  what  was  said  in  The  Nepoter"". 
that  it  is  contrary  to  all  rules  of  construc- 
tion to  interpolate  nny  reference  to  the 
bill  of  lading  act  into  llie  ndinirally  act. 
I  think,  therefore,  that  the  actual  point 
decided  in  Tlie  Freedom-'"'  might  be  quite 
right,  for  the  plaintiff  in  that  action  had 
a  property,  and  a  very  sub«tan»ial  prop. 
erty,in  thegoods.nsairainst  theinilor-Jers, 
anil  every  one  else,  and  was  In  every  sense 
an  assignee  of  the  lilll  of  lading.  The 
opinion  expressed  on  the  constructiou  ol 
the  is  &  lit  Vlct.c.  Ill,  that  in  tliat  act  the 


'GEiist,  17. 


"  Brow.  4  Lush.  4. 

»  Law  Hep.  J  .^.  &  K.  370. 

-UkW  Rep.  3  P.  C.  694. 


720 


SEWELL  0.  BUUUICK. 


proporty  nicant  a  le^al  title  as  against 
tho  iiidoiHer,  was  iK'i'liai's  iiuutce.ssary, 
and.  1  tliiiik,  not  wound. 

'I'lie  words  used  in  the  statute  are  not 
suel)  as  prima  fucie  to  express  sucli  an  in- 
tention. No  one,  in  ordinary  language, 
would  say  tliat  when  soods  are  pawned, 
or  money  is  raise(]  by  morfgase  on  an 
estate,  tlie  property,  eitlier  in  tlie  goods 
or  land,  passes  to  the  pledgee  or  mort- 
gagee, and  I  cannot  tliinli  that  the  object 
of  the  eiiaetment  was  to  enact  that  no 
security  for  a  loan  should  be  taken  on 
the  transfer  of  bills  of  lading  unless  the 
lender  incurred  all  the  liabilities  of  his  bor- 
rower on  the  contract.  That  would 
greatly,  and  I  think  unnecessarily,  hamper 
the  business  of  advancing  monei'  on  such 
securities  which  the  legislature  has,  by 
the  factors  acts,  shewn  it  thinks  ought 
rather  to  be  encouraged. 

It  is  not  uncommon  to  reduce  into  writ- 
ing the  agreement  between  the  banker 
and  his  customers  as  to  the  terms  on 
which  the  bills  of  lading  deposited  by 
them  as  securities  are  to  be  held.  Such 
was  the  case  iu  Glyn  v.  East  and  West 
India  Dock  ('ompanyS'?,  as  to  which  I 
shall  have  more  to  say  hereafter.  When 
there  is  such  a  writing, it  is, in  the  absence 
of  fraud,  conclusive  as  between  the  par- 
ties as  to  wliat  they  intended.  And  I  do 
not  in  the  least  question  that  such  a  writ- 
ing may  be  so  expressed  as  to  shew  that 
between  the  parties  the  transfer  was  a 
mortgage,  though  of  goods,  in  the  man- 
ner with  which  ever.vone  is  familiar  with 
regard  to  lands.  The  equity  of  redemp- 
tion in  such  a  case  was  an  equitable 
estate  only,  and  in  1S55  enforceable  in 
equity,  not  at  law. 

Where  there  is  neither  a  symbolical  de- 
livery by  a  transfer  of  a  bill  of  lading,  nor 
an  actual  delivery  of  the  goods  them- 
selves, there  may  be  (though  there  seldom 
is)  a  substantial  difference  in  the  rights 
of  tlie  lender  according  as  the  transaction 
is  of  the  one  kind  or  the  otlier. 

In  Howes  v.  Baliss,  Ball  sold  and  de- 
livered a  coach  to  John  Howes  (since  de- 
ceased) under  an  agreement  in  writing,  in 
which  there  vras  this  clause,  "And  furtiior 
I,  John  Howes,  do  agree  that  Thoiuas 
Ball  do  have  and  hold  a  claim  upon  the 
coach  until  the  debt  be  duly  paid."  John 
Howes  ilied  vvitliout  having  paid  the 
debt.  Ball,  after  his  death,  seized  the 
coach,  for  which  seizure  the  action  was 
brought  by  the  executor.  Had  that 
agreement  amounted  to  a  mortgage  by 
John  Howes  to  Ball,  I  take  it  there  could 
have  been  no  doubt  that  the  mortgagee 
would  have  had  as  much  right  against 
the  executor  of  John  Howes  as  he  would 
have  had  against  John  Howes  himself. 
But  it  was  held  that  it  did  not  amount 
to  a  mortgage,  but  only  to  an  agreement 
that  Ball  should  have  a  right  of  hypo- 
thec, and,  there  having  been  no  delivery 
by  Howes  to  Ball,  the  decision  was  that 
though  so  long  as  .John  Howes  lived  and 
held  the  property  in  the  coach  I'.all  might 
have  justified    the  seizure,  as  against  hira. 


"5  Q.  B.  D.  139;  6  Q.  B.  D.  475;  7  App.  Cas.  591. 
»*7B.  &C.  481. 


he  could  not  justify  a  seizure  as  against 
the  representatives.  In  Flory  v.  Denuysa 
where  the  agreement  was  "as  an  addi- 
tional security  f;ir  a  loan  to  assign  all  the 
ilebtor's  right  and  interest  in  a  chattel, " 
it  was  held  to  be  a  mortgage,  and  to  op.er- 
atescias  to  transfer  the  property,  with- 
out any  delivery,  as  a  bargain  and  sale 
out  and  out  of  the  goods  would,  though 
an  agi-ecnient  to  create  a  pledge  would, 
jiccordiug  to  Howes  v.  Ball,  have  con- 
veyed no  property  of  any  kind  in  the 
goods  without  a  delivery. 

But  where  the  goods  are  at  sea,  and 
there  is  a  transfer  of  the  bill  of  lading, 
there  is  a  delivery  of  possession.  syiMliol- 
ical,  it  is  true,  but  all  that  can  be  given. 
The  question  whether  there  was  a  mort- 
gage or  only  a  common  law  pleilge,  or 
h.vpothec.  it  being  accompanied  by  deliv- 
ery, might  affect  the  question  what  was 
the  court  in  which  those  riglits  were  to 
be  enforced,  but  does  not  affect  the  sub- 
stan  e  of  the  rights.  The  borrower  if 
ready  and  willing  to  pay  the  money, 
might  in  the  one  case  be  able  to  liring  iin 
action  at  law  against  the  lender  who  re- 
fused to  allow  him  to  redeem,  and  in  the 
other  have  to  sue  in  eqnitj',  but  as  it 
would  e(iually  be  a  pledge  bis  rights 
would  be  the  same  in  substance.  1  am 
therefore  strongly  inclined  to  hold  that 
even  if  this  was  a  mortgage  there  would 
not  have  been  a  transfer  of  "  the"  prop- 
erty within  the  meaning  of  18  &  19  Vict.  c. 
111.  This  IS  contrary  to  the  opinions  not 
only  of  Brett  M.  R.  and  Baggallay  L.  J., 
but  of  Field  J.  also. 

Bowen  L.  J.  who  agreed  with  Field  J. 
in  thinking  that  this  was  not  a  mortgage 
but  only  a  pledge,  did  not  express  any 
opinion  as  to  what  would  have  been  the 
law  it  it  liad  been  a  mortgage.  1  believe 
all  the  nolilc  and  learned  lords  who  heard 
tbeargument  areagreed  with  him  in  think- 
ing that  in  this  case  it  was  only  a  pledge. 
I  do  not  therefore  intend  toexpress  a  final 
decision  that  an  assignee  of  a  bill  of  lad- 
ing by  way  of  mortgage  is  not  as  such  lia- 
ble ti)  be"  sued  under  18  &  19  Vict.  e.  Ill ; 
but  only  to  guard  against  its  being  sup- 
posed that  even  if  Brett  M.  R.  and  Bag- 
gallay L.  J  were  right  in  holding  this  a 
mortgage',  I, as  at  present  advised,  shoiilfl 
agree  in  their  conclusion  that  the  defend- 
ants could  l)e  sueiJ. 

I  now  proceed  to  consider  the  question 
on  which  the  court  of  appeal  were  divided 
in  opinion,  but  the  majority  made  tho 
order  now  appealed  against.  The  ques- 
tion is  stated  by  Brett  M.  R.  to  be  "Does 
the  indorsement  of  a  hill  of  lading  as  a 
security  for  an  advance,  by  a  necessar.y 
implication  which  cannot  be  disproved, 
pass  the  legal  property  in  the  goods 
named  in  the  bill  of  lading  to  the  in- 
dorsee witli  an  equity  in  the  inilorser,  the 
borrower,  to  redeem  the  hill  of  lading  by 
|)ayment,  or  to  receive  the  balance,  if 
any,  on  a  sale?"*" 

Field  J.  had  held,  and  Bowen  L.  J. 
agreed  with  him,  that  it  might  so  oper- 
ate, if  so  intended    by    the   parties   at   the 


»»T  Ex.  5S1. 

« 13  Q.  B.  D.  161. 


SEWELL  c.  3U1{L)ICK. 


time,  ')iit  (lifl  not  so  opernte  if  it  vvoh  iii- 
teii'lcil  to  Ix'  no  nioi'c  tliiin  ii  pleOKo  uh  iIIh- 
tlnfiiiiHJifd  Iroiii  ii  niortt;iit;e. 

J  do  not  iindiTstiiiid  tliat  nny  one  of 
tlio  "jndKCH '>''low  dlHputcd  that  if  it  wjih 
a  (iiii'Ktioii  of  intention  dcpcndint;  on  the 
evlilencc,  tin'  finiliiit:  of  Fii-Id  .1.  wjih  riKl't; 
but  till'  ninjorlty  in  tlic  court  of  fippotil 
proceeded  on  the  prini-ipiew  I'Ufl  down  l)V 
Brett  L  J.  in  (Jl.vn  v  l';n8t  and  West  Indiu 
DocU  ('(jnipiin.v."  In  that  caHe  tlie  terniH 
on  which  the  hill  of  lading  waH  delivered 
to  Gl.vn  >fc  Co.  were  reduced  to  writins, 
and  the  question  therefoi'e  whether  It  wan 
Intended  to  deliver  it  h.v  way  of  i)ledne 
only,  or  hy  way  of  a  tnortt;a>;e,  depended 
on  the  constrnction  of  that  writlnc. 
Whether  lirett  L.  J.  tlioniilit  that  on  the 
conHlrnction  of  tlie  written  inHtrument 
it  WMH  intended  to  l)e  a  inortf?"(ii'  I  do 
not  kni)w;  I  do  not  think  he  proceedeil 
on  that  i;roiind.  He  naid  it  was  a  inort- 
(Xiitiv.  and  that  the  effect  of  the  Htatute  l.'i 
&  11)  Vict.  c.  HI  wa.s  to  tranHfer  the  rijjht 
to  Hne  and  the  Iial)ility  to  be  sued  to  tJlyii 
&  Co. 

Lord  Brainwell,  then  BrannvcU  L.  J., 
woH  of  aj)  opposite  opinion  on  l)Oth 
points.  He  1honf;;ht  that  (ilyn  &  Co  had 
a  special  property  and  a  rif^lit  of  posses- 
sion anil  no  more. 

In  the  honse  of  lordfl  I  said,  "  I  do  not 
think  it  necessary  to  express  any  opinion 
on  a  (|nestion  much  discussed  li.v  Hrett  [>. 
.).,  I  mean  w  het  lier  the  property  which  the 
batdiers  weri'  to  linve  -was  the  whole  let;al 
liropery  in  the  ^oods,  Cottaiil  iV  Co.'s  in- 
terest lioiny;  equitable  only,  or  whether 
the  liankers  were  only  to  have  a  special 
I)roperty  as  pa  wnees.  Cottain  &  t"o.  ha  v- 
inir  the  lenal  Kcneral  property.  ICither 
way  the  bankers  had  a  le^al  propert.v, 
iirid  at  law  the  rinlit  to  the  possession, 
subject  to  the  shipowner's  lien,  and  were 
entitled  to  maintain  an  action  a;;ainst 
any  one  who,  wilhont  justitication  or 
legal  excuse,  dc'iirived  them  of  that 
rijiht."'-  All  the  noble  and  learned  lords 
agreed  in  this.  I  think  therefore  the  de- 
cision of  this  honse  is  a  strong  authority 
in  support  of  the  position  which  I  have 
before  advanced,  that  the  rights  of  a 
mortgagee  having  taken  a  hill  of  lading, 
and  the  I'ights  of  a  pawnee  having  taken 
n  bill  of  lading,  are  in  substance  the  same. 

I  (lid  not  think  It  necessary  to  point  out 
that  the  question  which  the  house  in 
Cilyn  V.  Kast  and  W.-'st  India  Dock  Com- 
pany had  to  decide. -and  did  decide,  woulil 
liave  been  just  the  same  if  is  &  1<|  \ict.  c. 
Ill  had  never  been  i)assed  or  had  been  re- 
penlcd,  and  cons-Mjuently  that  it  was  un- 
necessary to  express  any  opinion  on  the 
c(tnstrnction  of  that  act,  but  it  obviously 
was  so. 

liefore  proceeding  further  I  wish  to  point 
out  what  in  my  opinion  isagreatmis- 
api)reliensinn  as  to  the  effect  of  the  de- 
eision  <>f  this  house  in  Lickliarrow  v. 
Masoir'''.  and  as  to  the  weight  to  I)e 
given  to  the  opinion  of  liuller  .1.  delivered 
in  this  house  and  reported  in  a  note  to  (i 
IChs(. 


"BQ.  B.  D.  47.5. 

*«"  App.  Cas.  5'Jl,  «0C. 

"6  East,  20,  n. 

LAW  SAI,I-:S — to 


I  have  already  said  thiit  In  thiH  case 
there  is  no  sale,  no  vendor,  and  no  ven- 
dee, utid  no  stoppage  in  traiiNitu,  mo  that 
(his  inisapprehenHlon,  us  I  think  It  Im,  Ib 
not  MO  material  us  it  might  be  hi  Hume 
other  cases. 

A  demurrer  on  evidence,  as  is  pointed 
out  by  Kyro  C.  .1.  In  delivering  the  unani- 
mous opinion  of  the  judges  in  (iibson  v. 
Hunter,'' not  (Iibson  v.  .\llnet,  as  is  by 
mistiike  said  in  the  note  in  li  Kast,  though 
not  familiar  In  practice,  was  u  [jroceedbiK 
known  to  the  law.  He  explains  it,  und 
states  his  very  conhdent  expeotationH 
(which  liave  been  justitieil  by  the  result) 
that  no  rleiiMirrer  on  evidence  would  again 
be  brought  before  the  house. 

It  may  be  well  to  point  oi;t  the  dated. 
The  demurrer  to  evidence  in  IJrkbarrow 
V.  .Mason'-'  was  in  17s7.  The  only  caMe  of 
!i  demurrer  on  evidence  In  what  were  then 
recent  times,  was  Cocksedge  v.  Kan- 
shaw,'o  on  which  j.xlgment  had  been 
given  In  this  house  In  17^:^.  Neither  In  the 
king's  bench  nor  in  the  excheciuer  cham- 
ber was  any  ((uestion  raised  in  Lickbnr- 
row  v.  .Niason  as  to  the  mode  In  which  the 
questions  iliscnssed  ivere  raised.  In  1790 
the  writ  of  error  from  the  decision  of  the 
exchccpier  chamber  was  brought  liefore 
the  house  of  lords.  The  law  peers  lit  that 
time  were  Lord  Thurlow.  Lonl  Lough- 
borough, and  Lord  Kenyoii.  When  it  was 
argued  does  not  ap|)ear.  but  It  was  ar- 
gued, anil  the  same  question  as  had  been 
asked  of  the  judges  In  Cocksedge  v.  l-aii- 
shaw  was  asked  of  the  judges.  Sixjudgen 
(inclnding  all  the  survivors  of  tliose  who 
had  joined  in  Lord  Loughborough'M  judg- 
ment in  the  exchequer  cliamber)  answered 
In  favour  of  the  restiondent.  The  three 
judges  who  had  given  judgment  in  the 
king's  bench  answered  in  favourof  the  ap- 
Iielliint.  This  house  delayed  giving  itH 
opinion  till  17'.Kl.  In  the  meantime,  In  I7'.I1, 
there  was  a  demurrer  to  evidence  in  (iib- 
son V.  Hunter,  which  was  brought  before 
this  house.  The  case  in  this  house  Is  re- 
imrted,  1'  H.  I!l.  1S7.  On  the  7th  of  Kebrn- 
ary  17!io  this  house  gave  jinlgment  award- 
ing a  venire  de  novo-  One  week  after- 
wards, on  the  14th  of  February  \''.n,  this 
house  delivered  judgment  in  the  long 
pending  case  of  LIckbarrow  v.  .Mason, 
awarding  in  that  case  also  a  venire  de  no- 
vo. Lord  Loughborough  wan  himself  at 
that  time  lord  chancellor. 

1  should  have  thought,  if  anything  was 
(dear.it  was  that  this  house  did  not  de- 
ride anything,  exce|it  that  on  that  demur- 
rer to  the  evideine  no  judgment  could  be 
given:  certainlv  the  last  conclusion  that 
I  should  lira  w  is  that  stated  bv  Field  J., 
that  the  house  ill  wliiidi  Lord  Loughbor- 
ough was  chancellor  decided  "presuma- 
bly" on  the  (qiinion  delivered  by  liuller. I. 
against  the  judgment  of  Lord  l.ouglilior- 
ough,  which  six  judges  to  three  had 
thought  right.  .Neither  cai\  1  at  all  agree 
in  the  opinion  expressed  by  Field  .1.  that 
the  opinion  of  liuller. 1.  has  always  been 
taken  as  the  law.  and  been  adopted  and 
followed  as  the  law  up  to  thepresentduy. 


"2H.  Bl.  '.'0.5,  206. 

"5T.  a  ti>>3. 

"1  Doug.  ll!i,  134. 


722 


SEWELL  V.  BUUDICK. 


It  never  was  publislicd  till  ISlto  in  a  note 
to  (i  East  20.  1  have  for  many  years  been 
of  opinion,  anfl  still  remain  of  opinion, 
that  niueli  of  what  Buller  J.  exprcssoK  in 
that  opinion  as  to  stoppaf^e  in  transitu 
was  peculiar  to  himself,  and  was  never 
adopted  by  any  other  judge,  and  is  not 
law  at  the  present  day.  But  it  is  not  nec- 
essary to  pursue  the  subject  further,  as  I 
agree  wi til  Bowen  L.  .J.  that  neitlier  the 
statement  of  the  custom  of  niercliants  in 
the  special  verdict  in  Lickbarrow  v.  Ma- 
son, nor  the  opinion  of  Bullei' .J.,  justifies 
the  inference  that  the  indorsement  of  a 
bill  of  ladiua  for  a  valuable  consideration 
must  pass  the  entire  legal  property,  what- 
ever was  the  intention  of  the  parties. 

In  Lickbarrow  v.  Mason,  Turing  was  an 
unpaid  vendor  to  Freeman.  He  had  in- 
dorsed the  bill  of  lading  to  Frecnian,  and 
had  not  therefore  any  right,  except  that 
of  stopping  the  goods  while  in  transitu  if 
Freeman  became  insolvent  without  having 
paid  for  the  goods,  and  that  right  he  had, 
though  the  inilorsed  bill  of  lading  had  been 
sent  on  to  th?  vendee,  so  long  as  that  bill 
of  lading  remained  in  the  vendee's  hands. 
But  before  any  such  stoppage  Freeman, 
for  valuable  consideration,  indorsed  the 
bdl  of  lading  to  Lickbairow,  who  wheth- 
er as  mortgagee  or  pledgee,  had  a  legal 
property  acconii)anied  by  a  right  of  pos- 
session. The  point  which  I  understand  to 
have  been  decided  in  Lickbarrow  v.  Ma- 
son was,  that  on  the  transfer  of  the  bill  of 
lading  to  Lickbarrow  the  goods  ceased 
to  be  In  transitu,  the  shipownerfrom  that 
time  no  longer  holding  them  as  a  middle- 
man to  carry  the  goods  from  the  unpaid 
vendor,  Turing,  to  Freeman  his  vendee, 
but  holding  them  as  agent  for  Lickbar- 
row. It  was  held,  first  in  Re  Westzin- 
thus-f?  and  then  in  Spalding  v.  Ruding.'s 
that  where  the  transitus  was  thus  put  an 
end  to  by  what  was  in  reality  only  a 
pledge,  the  stoppage  might  be  made  avail- 
able ill  equity  so  far  as  the  rights  of  the 
pledgee  jjid  not  extend.  I  thought,  and 
still  think,  that  the  reason  why  the  stop- 
page could  not  be  made  available  at  law 
was  because  the  shipowner  no  longer  held 
the  goods  as  a  middleman,  as  the  trans- 
feree of  the  bill  of  lading  for  valiiable  con- 
sideration and  bona  tide  so  as  to  give  him 
a  security  whether  by  way  of  mortgage 
or  by  way  of  pledge,  had  a  legal  property 
in  the  goods  which  he  could  enforce  as 
against  the  shipowner.  Such  being  my 
view  of  the  law,  whether  it  was  right  or 
wrong,  I  expressed  myself  accor<lingly  in 
Kemp  V.  Falk,*"  so  as  to  shew  that  I 
thought  so;  lint  there  wasnothiiigin  that 
case  to  call  for  a  decision  on  the  point 
now  before  this  house. 

In  Nev.'sou  v.  Thorntons"  Lord  Ellen- 
borough  says:  "I  should  bo  ver.v  sorry  if 
anything  fell  from  the  court  which  weak- 
ened the  autliority  of  Lickbarrow  v.  Ma- 
son as  to  the  right  of  a  vendee  to  pass  the 
property  of  goods  in  transitu  by  indorse- 
raent  of  the  bill  of  lading  to  a  bona  fide 
holder  for   a  valuable  consideration    and 


«  5  B.  &  Ad.  817. 
"6  Beav.  381. 
«7  App.  Cas.  573. 
"6  East.  40. 


without  notice.  For  as  to  Wright  v. 
Campbell, 3i.though  that  was  tlie  case  of 
an  indorsement  of  a  factor,  it  was  an  out- 
right assignment  of  the  property  for  value. 
Scott,  the  indorsee,  was  to  sell  the  goods 
and  indemnify  himself  out  of  the  |)roiluce 
tlie  amount  of  the  debt  for  which  he  had 
made  himself  answerable.  The  factor, 
at  least,  purported  to  make  a  sale  of  the 
goods  transferred  by  thebill  oflading.and 
not  a  pledge.  Now  this  was  a  direct 
pledge  of  the  bill  of  lading,  and  not  in- 
tended by  the  [larties  as  a  sale.  A  bill  of 
lading,  indeed,  shall  pass  the  property 
upon  a  bona  fide  indorsement  and  delivery 
where  it  is  intended  so  to  operate,  in  the 
same  manner  as  a  direct  delivery  of  the 
goods  tliemselves  would  do  if  so  intended. 
But  it  cannot  operate  further." 

Lawrence  J.,  at  page  4;i,  says,  speaking  of 
Tiickbarrow  v.  Mason  :  "All  that  thatcase 
seems  to  have  decided  is,  that  where  the 
property  in  the  goods  passed  to  a  vendee, 
subject  only  to  be  devested  by  the  ven- 
dor's right  to  stop  them  while  in  transitu, 
such  right  must  be  exercised,  if  at  all,  be- 
fore the  vendee  has  parted  with  the  prop- 
erty to  another  for  a  valual)le  considera- 
tion and  bona  tide,  anil  by  indorsement  of 
The  bill  of  lading  given  him  a  right  to  re- 
cover them."  And  Le  Blanc  J.  says  that 
what  they  then  determine  "  will  not  lireak 
in  at  all  on  the  doctrine  of  Lickliarrow  v. 
Mason  that  the  indorsement  of  a  bill  of 
lading  upon  the  sale  of  the  goods  will  pass 
the  properly  to  a  bona  tide  indorsee,  the 
property  being  intended  to  pass  by  such 
indors»nient." 

In  Glyn  v.  East  and  West  India  Dock 
Co. ,52  Brett  I...  J.  says  (speaking  of  an 
opinion  of  Willes  J.),  "To  say  that  an 
indorsement  of  a  bill  of  lailing  for  an  ad- 
vance is  only  a  pledge,  seems  to  me  to  be 
inconsistent  with  what  has  always  been 
considered  to  be  the  result  of  Lickbarrow 
V.  Mason,  namely,  that  such  an  indorse- 
ment passes  the  legal  property, "by  which 
I  understand  him  to  mean  tlie  whole  legal 
property.  But  neither  in  that  case  nor  in 
the  case  now  at  bar  does  he  refer  to  any 
authority  to  that  effect.  Expressions  used 
by  judges  have  been  cited  which,  1  think, 
only  shew  that  tliey  did  not  carefully 
consider  their  language,  where  no  ques- 
tion of  the  kind  before  us  was  under  dis- 
cussion. And,  as  far  as  1  know,  there  is 
no  decision  subsequent  to  I/ickiiarrow 
v.  Mason  which  proceeds  on  such  a 
ground,  whilst  Newsom  v.  Thorntonss 
proceeds  expressly  on  the  ground  that  the 
indorsement  of  a  bill  of  lading,  when  in- 
tended to  be  a  pledge  only,  is  ncit  valid  if 
made  by  one  who  has  no  authority  to 
make  a  pledge.  1  do  not  know  that  1  am 
justified  in  saying  that  it  is  a  decision 
that,  if  it  was  made  by  one  who  had  au- 
thority to  make  a  pledge,  it  would  be 
good  as  such,  though  I  think  that  ap- 
pears to  have  been  Lord  EUenborough's 
opinion,  and  I  do  not  think  any  authority 
was  cited  on  the  argument  at  the  bar  to 
shew  that  such  is  not  the  law.  No  case 
was  cited    at   tlie   barnoram    I   aware  of 


'H  Burr.  2047. 
'=6Q.  B.  D.  480. 
'3  6  East,  17. 


SEWELL  V.  BUHDICK. 


723 


any  in  which  It  hiiH  l)een  helij  tliat  a 
triwiKfcr  o(  tlie  hill  of  lailiiiK  f<>r  viiliic  iicc- 
eBHiirily,  wliatover  iiiiKht  l)i'  flio  intention, 
paHsed  the  whole  IckjiI  property.  The 
raaHter  of  tlio  roll  Hayn: — "If  the  general 
underHtandintt  of  nierflinnts  had  not  tieeii 
in  accordoncc  with  tlie  verdict  of  tin-  jury 
in  Lickbarrow  v.  Mason, ''^  accepted  in  its 
larKest  sense,  there  would,  one  wonld 
Ihlnlf.liave  l)een  e-ines  In  tliebooks  raising 
the  (iiiestioii."''^  With  siit)niisslon  to  the 
master  of  tlio  foIIh,  1  tliink  no  weight  can 
l)e>;lven  to  this  al)sence  of  authority  un- 
til it  is  shewn  that  there  have  Ijceii  cases 
in  which  it  became  material  to  consider 
whetlier  an  indorsement  intended  to  lie 
and  o|)eratinji  as  a  pledge  at  law  had  a 
less  eff(!Ct  than  an  indorsement  operrttlnp; 
against  the  intention  as  a  nuirtgage.  I 
have  already  given  m.v  reasons  for  think- 
ing that  ill  substance  the  rights  would  l)e 
the  same.  Without,  therefore,  (lecidln;r 
the  question  whether  a  mortgage  would 
render  the  mortgagee  liable  under  18  & 
19  Vict.  c.  111.  I  decide  that,  mainly  for 
the  reasons  given  by  Uowen  L.  .1.,  this 
transfer  did  not  operate  as  a  mortgage. 

I  therefore  am  clearly  of  opinion  that 
the  order  made  by  the  court  ol  appeal 
sliould  be  reversed  with  costs,  and  tlie 
judgment  of  Field  J.  restored. 

Lord  B1{A.\!\VELL:-My  lords,  I  con- 
cur. This  action  would  not  have  been 
maintninalde  at  common  law.  Is  it  main- 
tainable under  is  &  111  Vict.  c.  111?  Tliiit 
depends  ujion  whether  tlie  appellants  are 
indoisees  of  the  bill  oflailing"to  whoni 
the  propert.v  in  the  goods  therein  men- 
tioned has  passed  iijion  or  liy  reason  of 
such  indorsement."  It  is  found  as  a  fact, 
and  rightly  fonn<I,  as  is  ailmitted.  that 
all  that  was  intended  in  the  transaction 
was  a  pleilge.  This  would  give  the  appel- 
lants a  [iroperty,  but,  as  i>nt  by  Howen 
L.  .1.,  not  "  the"  property.  .\s  1  under- 
stand the  master  of  the  rolls,  if  tliis  could 
lie,  then  the  appellants  are  right;  but  he 
thinks  it  could  not  lie— tliat  IJcUbarrow 
V.  Mason,  or  rather  the  opinion  of  liuller 
J.,  shews  that  when  a  bill  of  lading  is  in- 
dorsed to  give  any  title  to  the  transferee 
the  entire  property  is  passed,  and  that  in 
such  a  ease  as  this  notliing  but  an  e()uita- 
ble  right  to  redeem  remains  in  the  trans- 
feror. It  is  for  those  who  assert  this  to 
prove  it.  I  cannot  prove  the  negative 
that  it  is  not  so:  and  logically  and  rea- 
sonably I  might  content  myself  witli  say- 
ing that  it  is  not  proved  to  me:  that  I  see 
no  reason  and  no  authority  In  BUi)|)ort  of 
it.  Hut  I  go  further:  1  think  that  au- 
thority aiiii  reason  are  against  it.  Tlie 
cases  do  not,  in  m.v  opinion,  justify  the 
contention.  1  will  not  discuss  or  examine 
them  in  detail;  that  has  been  done  by  the 
lord  chancellor.  I  understand  his  con- 
clusion to  be  that  the  expressions  of 
learned  judges  which  have  l)cen  relied  up- 
on should  be  reail  and  interpreted  secun- 
dum subjectam  niateriani.  I  agree.  In 
no  case  has  the  present  matter  been  under 
consideration.  .\8  to  the  reason  and  prin- 
ciple   which   should    govern,   I    ask    why 


"  1  SiB.  L.  C.  753,  Sth  ed. 
» 13  Q.  B.  D.  103. 


I  should  the  transfer  of  the  bill  of  lading 
have  a  greater  effect,  contrary  tii  the  par- 
tics'  intention,  than    the    handing  over   ol 

j  the  chattels  themselves?  They  could  be 
pledged    if   <in    shore,  but  belni;  at  sea    nu 

I  actual  delivery,  which  is  necessary  to  u 
common  law  pledge, can  take  place."  There 

•  can,  however,  be  u  symbolical  delivery  bv 
transferring  the  bill  of  lading.  Why 
should  the  effect    be  different? 

Then  consider  the  inconvenience  of  hold- 
ing that  the  |)le(lgor  has  only  an  e(|uitu- 
ble  right:  that  he  may  repay  the  loan  at 
the  (lay  apiiointed,  but  tlierc-by  acquire 
no  legal  title  to  the  possession  of  the 
goods:  that  the  pledgee  may  sell  and  pasM 
the  entire  property  ro   one  not  having  no- 

i  tice  of  the  ecpiilable  title.  Consiiler  what 
dillicultios  would  be  put  on  those  who 
lend  on  such  securities  if  tills  action  whh 
niaintainable.  The  banker  who  lentmon- 
e,v  on  a  bill  of  lailing  for  goods  which  ar- 
rived in  specie,  but  dnmageil  by  iierils  of 
the  s'.'as  so  as   to  be  worthless,  might  lose 

'the  money  lent  and  the  freight.  .Another 
conse(|ueiice  would  be    that  the  transferee 

I  of  the  bill  of  lading,  though    only  interefit- 

!  ed  to  the  amount  of  the  loan  on  it,  would 
be  the  |>erson  to  bring  actions  on  the  con- 
tract   to   carry.     It  is  true   that  unless  be 

I  can  do  so  in  all  cases,  he  can  in  none,  even 

I  where  hisinterest  is  to  theexlent  of  the  full 
value  of  the  goods.  Either  tliis  was  not 
tliou;;ht  of  li.v  the  le;;islature,  or,  if  It  was, 
they  thought  that  no  case  could  be  in- 
cluded unless  all  were,  and  tliat  it  was 
better  to  incluile  none  than  all.  It  is  to 
be  observed  that  the  st;itute  In  its  pream- 
ble says  that  liy  indorsement  the  property 
"may"  pass.  It  is  to  be  reniemberetl  also, 
as  pointed  out  by  my  lord  chancellor, 
that  this  law  bears  upon  forei«ners  out  of 
the  kingdom. 

lam  the  more  surprised  at  this  conten- 
tion on  the  ])art  of  the  master  of  the  rolls, 
as  he  has  always  so  aldy  and  powerfully 
contended  that  mercantile  la  ws.  contracts, 

,  and  usages  should  be  free  as  possible  from 
technicality.  I  am  of  opinion  that  the  a|>- 
peal  should  be  allowed.  I  cannot  truly 
say  that  I  have  any  doubt  on  the  matter, 
i  take  this  opportunity  of  sayini;  that  I 
think  there  is  some  Inaccuracy  of  expres- 
sion in  the  statute.  It  recites  that,  "  by 
the  custom  of  merchants  a  bill  of  lading 
being  transferable  liy  indorsement  the 
propert.v  in  the  goods  may  thereby  pass 
to  the  indorsee."  Now  the  truth  is  that 
the  (iroperty  does  not  pass  by  the  indorse- 
ment, but  by  the  contract  in  pursuance  of 
which  the  indorsement  is  niaile.  ll  a  car- 
go alloat  is  sold,  the  iiroperty  woulil  pass 
to  the  vendee,  even  though  the  bill  of  lad- 
ing was  not  Indorsed.  1  do  not  say  that 
the  vendor  might  not  retain  a  Hen,  nor 
that  t!ie  noii-iiidorseiiieiit  and  non-hand- 
ing over  of  the  bill  of  lading  wouhl  not 
have  certain  otherconseqiiences.  .\ly  con- 
cern is  to  shew  that  the  pri)|ierty  passes 
l>y  the  contract.  .So  if  the  contruet  was 
oiie  of  security  — wiiat  would  lie  a  pledge 
if  the  property  wa-i  handed  over— a  con- 
tract of  hypiithecatlon,  the  property 
would  lie  bouml  by  the  contract,  at  least 
as  to  all  who  hail    notice  of  It,  though  the 

I  bill  of  lading  was  not  handed  t>ver. 

There  U,  1  think,  another  Inaccuracy  in 


724 


SEWELL  V.  BURDICK. 


the  statute,  which  indeed  is  universal. 
It  speaks  of  the  contract  contained  in  the 
bill  of  lading.  To  my  mind  there  is  no 
con  tract  in  it.  It  is  a  receipt  for  the  goods, 
stating  the  terms  on  which  they  wei'e  de- 
livered to  and  received  by  the  ship,  and 
therefore  excellent  evidence  of  those  terms, 
but  it  is  not  a  contract.  That  has  been 
made  before  the  bill  of  lading  was  given. 
Take  for  instance  goods  stripped  under  a 
charterparty,  and  a  bill  of  lading  differing 
from  the  charterparty;  as  between  ship- 
owner and  shipper  at  least  the  charter- 
party  is  binding:  Gledstanes  v.  Allen. ^8 
These  distinctions  are  of  a  verbal  char- 
acter, and  not  perhaps  of  much  conse- 
quence; but  I  am  strongly  of  opinion  that 
precision  of  expression  is  very  desirable, 
and  had  it  existed  in  such  cases  as  the 
present  there  would  not  have  been  the 
contradictory  opinions  whicli  have  been 
given. 

Lord  FITZGERALD:— My  lords,  Field 
J.  in  the  court  below  came  to  the  conclu- 
sion that  the  tJ'ansaction  under  investiga- 
tion was  intended  by  the  parties  to  oper- 
ate us  a  pledge  onlj-.  There  can  be  no 
doubt  that  the  inference  thus  drawn   by 


"12  0.  B.  202. 


the  learned  judge  was  correct  in  fact.  It 
seems  to  follow  that  the  pledgees  acquired 
a  special  property  in  the  goods  with  a 
right  to  take  actual  possession,  should  it 
be  necessary  to  do  so  for  their  protei'tion 
or  for  the  realisation  of  their  securitj'. 
They  acquired  no  more,  and  subject  thei-e- 
to  the  general  property  remained  in  the 
pledgor. 

1  am  of  opinion  that  the  delivery  of  the 
indorsed  bill  of  lading  to  the  defendants 
as  a  security  for  their  advance  did  not  by 
necessary  implication  transfer  the  proper- 
ty in  the  goods  to  the  defendants.  They 
were  not  therefore  "indorsees  of  a  bill  of 
lading  to  whom  the  property  in  the  goods 
passed  by  reason  of  the  indorsement,"  so 
as  to  make  them  without  more  "subject 
to  the  same  liabilities  in  respect  of  such 
goods  as  if  the  contract  contained  in  the 
bill  of  lading  had  been    made  with   them." 

The  judgments  which  have  been  just  de- 
livered are  so  very  full,  and  so  able  and  sat- 
isfactory, that  it  would  be  mere  affecta- 
tion on  my  part  to  attempt  to  do  more 
than  express  my  concurrence. 

Order  appealed  from  reversed.  Order 
of  P^ield  .1.  restored.  Respoadent  to  pay 
the  costs  in  the  court  below  and  in  this 
house.  Cause  remitted  to  the  queen's 
bench  division. 


8IIAW1IAX  c.  VAX  NEST. 


SHAWHAN  V.  VAN  NEST. 

(25  Ohio  St.  49(1.) 

Supreme  Court  of  Oliio.    December  Term,  1S74. 

Motion  tor  leave  to  file  a  petition  in 
error. 

Action  by  Peter  Van  Nest  aKiiiiiHt  Keaisin 
W.  Sliiiwluin  to  r('(;over  on  a  contract  by 
wl)icli  lie  auri-ed  to  iiiaki-  for  Sliawhan  a 
carriase  in  acconJance  with  hi.s  (lirectionn 
for  IJFTOO,  anil  have  the  same  reaily  for  di-- 
livcry  at  lii.s  Kliop  ()ctol)er  1,  IsTI,  in  con- 
Bideration  whereof  Shawlian  aurcecl  to  ac- 
cept the  cnrriaKe  at  the  shii|)  and  pay  the 
af;;''ef<l  price,  lie  alle^ted  the  tender  of  the 
carriaKe  October  IhI,  and  the  refn.sal  of 
8huwhan  to  accept  or  pay  for  it.  The  ev- 
idence establishccl  the  alh'fjations  (jf  the 
complaint.  The  court  i'i«tnicted  the  jury 
tliat,  if  they  found  thr-  iwnucH  for  the 
plaintiff,  they  should  uive  him  a  verdict 
for  the  contract  ])rice  of  the  carriage,  witli 
IntercHt  from  the  time  the  money  shonlil 
have  l)een  paid.  Shawhan  requested  the 
court  to  frive  to  the  jury  the  following 
Ki)eeial  instructions:  (l|  "If,  in  this  case, 
the  evidence  shows  that  the  defendant  or- 
d(  red  the  plaintiff  to  make  for  him  a  car- 
riage, and  agrceil  to  take  or  receive  it, 
when  liiiislie<l,  at  the  plaintiff's  shoji,  and 
to  pav  a  reasonable  price  therefor,  and 
the  plaintiff  did,  in  pursuance  of  such  or- 
der and  agreement,  make  such  carriage,  of 
the  value  of  seven  hundred  dollars,  and 
have  the  same  in  readiness  for  delivery  at 
his  sliop,  of  which  the  defendant  had  no- 
tice, and  the  defendant  then  failed,  neg- 
lected, anil  refused  to  take,  receive,  or  pay 
for  said  carriage,  though  rciiuested  so  to 
do  by  the  plaintiff,  these  will  not  author- 
ize you  to  render  a  verdict  for  the  plain- 
tiff for  the  price  or  value  of  the  carriage.  " 
IL')  "  If  the  plaintiff  has  proveil  the  mak- 
ing of  the  carriage  for  the  defendant,  and 
the  refusal  of  the  latter  to  receive  and  pay 
for  it,  as  alleged  in  the  petition,  then  he 
can  only  recover  tor  the  damages  or 
losses  he  lins  actually  sustained  by  reason 
of  this  refusal  of  the  defendant,  which  is 
till'  difference  between  the  agreed  price 
and  the  actual  value."  These  instruc- 
tions the  court  refused  to  give,  and  .Shaw- 
han e.xcepted.  'i'he  jnry  found  for  Van 
Ni'st,  and  gave  him  the  contract  price  of 
the  carriage,  with  interest. 

W.  I'.  N(d)le,  for  plaintiff  in  error.  U.  E. 
Seney,  for  Uefeudant  in  error. 

(ilLMORR,  .T.  The  only  (luestion  to  be 
determined  in  this  case  is  :  Did  the  court 
err  in  refusing  to  give  to  the  jury  the  spe- 
cial instructions  reiiiiested  by  the  defend- 
ant on  the  trial  below?  The  authorities 
cited  liy  counsel  for  the  parlies  respective- 
ly, aie  not  in  harmony  with  ea'di  other  on 
tli's  (ju'-stion.  Some  of  those  cited  by  the 
plaintiff  in  error  (d(>fcndant  below  I  show 
clearly  that  under  the  pleadings  and  prac- 
tice at  comm')n  law,  there  could  be  no 
recovery  nnder  the  common  counts  in 
assumpsit,  for  goods  sold  and  delivered, 
or  for  goods  bargained  and  sold,  where 
no  dejiverysulliciei.t  to  pass  the  title  from 
♦  he  vendor  to  the  vendee  had  been  made. 
And  further,  that  in  this   foiin   of   action. 


proof  of  a  tender  of  the  goodH  by  the  ven- 
ilor  to  the  vendee,  or  leavinK  them  with 
him  against  his  remonstrance,  would  not 
constitute  such  a  delivery  as  would  pass 
the  title  and  enable  the  vendor  to  recover. 
While  these  may  l)e  regarded  as  setding 
the  rules  of  t)leading  and  evidei in  tin- 
trial  of  particular  cases,  and  theri-lore  not 
decisive  of  the  iinestiun  when  raised  under 
issues  soformed  as  to  present  it  freed  from 
the  tichnicaliticsof  pleading. Rtill  thereare 
other  cascM  cited  on  tlie  same  side,  which 
declare  the  rule  to  lie  as  followH:  Where 
an  action  IS  hrouglit  by  the  vendoragaiiiHt 
the  vendee,  for  refusing  to  receive  ni.d  (iiiy 
for  goods  purchased,  the  measure  of  diiin- 
nges  iH  the  actual  Ions  riiistained  by  the 
vendor  in  consei|uence  of  the  vendee  refus- 
ing to  taki-  and  pay  for  the  koimIh,  or,  in 
other  words,  the  difference  lietw-en  the 
contract  price  and  the  market  price  at  the 
time  and  place  or  delivery.  In  the  author- 
ities cited  by  tlie  plaintiff  in  ern.r,  no  ills 
tiiiction  is  drawn,  or  attempted  to  l)e 
•  Irawii.  between  the  sale  of  gnods  and 
chattels  already  in  existence,  and  an 
agreement  to  furnish  materials  and  iniin- 
ufacturn  a  specilic  article  inn  particular 
way,  and  according  to  order,  which  is  not 
yet  in  existence:  the  theory  being,  that  in 
neither  case  would  the  title  pass,  or  prop- 
erty vest  in  the  pnrchaser,  nntil  there  had 
lieen  an  actual  delivery,  and  that  natll 
the  title  had  passed,  tlie  vendor's  remedy 
was  liiniteil  to  the  damages  he  had  suf- 
fered by  reason  of  the  breach  of  the  cun- 
tract  liy  the  vendee,  which  were  to  be 
measured  by  the  rule  above  Mlated.  In 
this  case  it  is  not  necessary  to  determine 
whether  or  not  n  dlstiiiction,  resting  npun 
principles  of  law.  can  lie  drawn  between 
ordinary  sales  of  goods  in  existence  and 
on  the  market,  and  goods  innde  to  order 
in  a  particular  way,  in  pursuance  of  a  con- 
tract lietween  the  vendor  and  vendee. 
The  case  here  Is  of  the  hitter  kind,  and  the 
<|Uestion  is.  whether  the  plaintiff  l>elo\v 
was  entitled  to  recover  the  contract  price 
of  the  carriage,  on  proving  that  he  hni) 
furnished  the  materials,  and  made  and 
tendered  it  in  imrsiiance  of  the  terms  of 
the  contr;ict. 

Counsel  for  thedefendnnt  In  eri-or( plain- 
tiff below)  has  cited  a  nninber  of  authori- 
ties, in  which  the  (luestions  presented  and 
decided  arose  n|ion  facts  similar  to  those 
in  this  case,  nnd  upon  issues  presenting 
the  (|iiestii>n  in  the  same  v«  ny  ;  and  ns  the 
conclusions  we  have  arrived  at,  are  based 
npon  this  class  of  authorities.  Home  of 
them  niav  be  parlicnlarlv  noticed. 

laltemeiit  v.  Smith,  l.'i  Wend. -I'.i:!,  thede- 
fendnnt employed  the  plaintiff,  a  carriage- 
maker,  to  build  a  sulky  for  him.  for  which 
he  promised  to  pay  eighty  dollnrx.  The 
plaintiff  made  the  sulky  according  to  r<in- 
tract,  and  took  it  to  the  residence  of  llie 
defendant,  and  told  hinr  he  delivered  It  to 
him,  and  deiiiiinded  |iaynient.  in  pnrsn- 
ance  of  the  tei  nis  of  the  contract.  Tlit 
defendant  refused  to  i-cceive  It.  Whereup- 
on the  plaintiff  told  him  he  would  leave  it 
witli  .Mr.  He  Wolf,  who  lived  near;  wlilch 
he  did.  and  commenced  suit.  On  tlie  trial 
It  was  proved  the  sulky  was  worth  eighty 
dollars,  the  contract  price.  The  court 
charged  the  jury,  that    the   tender  of   the 


726 


SHAWIIAN  V.  VAN   NKST. 


corriuue  was  substantially  a  fulfillnienl;  of 
the  contract  on  the  part  of  tho  plaintiff, 
and  that  he  was  entitleil  to  wustain  hi^ 
action  for  tlie  price  aj;rec(l  upon  between 
the  parties.  The  defendant's  counsel  re- 
quested til?  court  to  charge  the  jury  that 
the  measure  of  damages  was  not  the 
sulky,  but  only  the  expense  of  taking  it  to 
the  residence  of  the  defendant,  delay,  loss 
of  sale,  etc.  The  judtje  declined  to  so 
charge, and  reiterated  the  instruction  that 
the  value  of  the  article  was  the  measure  of 
damages.  The  jury  found  (or  the  plain- 
tiff, with  eiphty-three  dollars  and  twenty- 
six  cents  damages,  l)eing  the  contract 
price  with  interest.  The  charge  to  tlie 
jury  was  sustained  by  the  supreme  court 
of  New  York. 

In  Hallentine  et  al.  v .  Robinson  et  al., 
46  Penn.  St.  177,  an  agreement  was  made 
between  the  plaintiffs  and  defendants, 
whci-eby  the  plaintiffs  were  to  provide 
materials,  and  construct  for  the  defenrl- 
antsa  six-inch  steam-engine,  with  boiler 
and  Gifford  injector  and  heuter.  in  consid 
eration  whereof  tlie  defendants  were  to 
pay  plaintiffs  five  hundred  and  thirty-five 
dollars  in  cash  on  the  completion  thereof. 
The  plaintiffs  conii)lied  with  and  complet- 
ed the  contract  in  all  resjiects  on  their 
part,  but  the  defendants  refused  to  pay 
according  to  contract.  On  the  trial,  the 
plaintiffs  proved  the  contract,  and  the  jier- 
formance  of  it  on  their  part,  and  that  the 
engine  was  still  in  their  hands. 

The  defendants'  counsel  asked  the  court 
to  Instructthe  juri'  "that  the  proper  meas- 
ure of  damages  in  this  case  is  ihe difference 
between  the  price  contracted  to  be  paid 
for  the  engine  and  the  market  price  at  the 
time  the  contract  was  broken."  The 
court  declined  to  charge  as  requested,  and 
instructed  the  jury  that  the  measure  of 
damages  was  the  contract  price  of  the 
engine,  witli  interest.  There  was  a  ver- 
dict for  the  plaintiffs  for  the  contract 
price.  The  case  was  taken  to  the  supreme 
court,  and  the  error  assigned  was  the  re- 
fusal of  the  court  to  give  tlie  instructions 
requested  by  the  defendant. 

The  sui)reuie  court  atfirined  the  judg- 
nient  in  the  case  below.  It  will  be  seen 
that  these  cases  aie  very  similar,  and  pre-  j 
senteil  th.e  same  question,  and  in  the  same 
manner  that  the  question  is  presented  in 
this  case.  Graham  v.  Jackson,  H  East, 
498,  decides  the  |)oint  in  the  same  way. 
Mr.  Sedgwick,  in  his  work  on  Damages, 
side  page  I'SO,  in  speaking  on  this  subject, 
says:  "Where  a  vendee  is  sued  for  non- 
performance of  the  contract  on  his  part, 
in  not  paying  the  contract  i)rice,  if  tlie 
goods  have  been  delivered,  the  measure  of 
damages  is  of  course  the  price  named  in 
the  agreement;  but  if  their  possession  has 
not  been  changed,  it  has  been  doul>ted 
whether  the  rule  of  damages  is  the  price 
itself,  or  only  the  difference  between  the 
contract  price  and  the  value  of  the  article 
at  the  time  fixed  for  its  delivery.  It  seems 
to  be  well  settleil  in  such  cases  that  the 
vendor  can  resell  them,  if  he  sees  fit,  and 
charge  the  vendee  with  the  difference  be- 
tween the  contract  price  and  that  realized 
at  the  sale.  Though  perhaps  more  pru- 
dent it  is  not  necessary  tliat  the  sale 
should  beat  auction;  it    is   only  requisite 


to  show  that  tlie  [troperty  was  sold  for  a 
fair  price.  But  if  the  venilor  does  not  pur- 
sue this  course,  and,  without  reselling  the 
goods,  sues  the  vendee  for  his  breach  of 
contract,  the  question  arises  ■which  we 
have  already  stated,  whether  the  vendor 
can  recover  the  contract  price,  or  only 
the  difference  between  that  price  and  the 
value  of  tha  goods  which  remain  in  the 
vendor's  hands;  and  the  rule  appears  to 
be  that  the  vendor  can  recover  the  con- 
tract price  in  full." 

In  Hadly  v.  Pugh  et  al.,  \A' right,  554,  the 
action  was  "assumpsit  on  a  written  ngree- 
nient  between  the  parties,  for  the  defend- 
ants to  take  all  the  salt  the  [ilaintiff  man- 
ufactured between  the  '2t]  of  June,  1X31, 
and  the  1st  of  January,  1.S3L',  to  be  deliv- 
ered at  the  landing  in  Cincinnati,  from 
time  to  time,  as  the  navigation  of  the 
Muskingum  and  Ohio  should  permit,  and 
to  pay  forty-tive  cents  a  bushel."  The 
plaintiff  proved  the  agreement,  and  the 
offer  to  deliver  to  the  defendants  three 
hundred  and  fifty  barrels  of  salt,  which 
the  defendants  refused  to  receive.  Tliere 
was  an  issue  in  tliecHBe,a8  to  whether  the 
contract  had  been  previously  fulfilled  and 
abandoned  by  the  parties.  The  court 
(Lane,  J.)  charged  the  jury  that  if  the 
contract  had  not  been  "fulfilled  or  aban- 
doned, and  the  plaintiff  tendered  the  salt 
under  the  contract,  which  was  refused,  he 
had  a  right  to  leave  it  for  the  defendants 
and  recover  the  value." 

The  only  case  I  have  examined  in  which 
the  authorities  on  this  point  are  reviewed, 
is  that  of  Gordon  v.  Norris,  4!)  N.  H.  370. 
The  case  is  too  lengthy  and  complicated 
to  attempt  to  give  an  abstract  of  it  here, 
but  the  point  under  coiisiileration  was  in- 
volved ;  and  although  the  learned  judge 
criticises  the  law  as  laid  dcnvn  by  Mr. 
Sedgwick,  and  even  shows  that  the  au- 
thorities he  quotes  in  suiiport  of  his  posi- 
tion do  not  sustain  him,  for  the  reason 
pointed  out,  yet  he  says  that  there  is  a 
distinction  between  the  case  of  Bement 
V.  Smith,  and  the  ordinary  cases  of  goods 
sold  and  delivered — viz..  "  the  distinction 
bet  ween  a  contract  to  sell  goods  then  in 
existence,  and  an  agreement  to  furnish 
materials  and  manufacture  an  article  in  a 
particular  way  and  according  to  order, 
which  is  not  yet  in  existence."  He  recog- 
nizes Benient's''ase  and  others  of  thesame 
class  as  exceptions  to  the  general  rule 
whicli  is  to  be  applied  in  the  sale  of  ordi- 
nary goods  and  merchandise  which  have 
a  fixed  market  value;  and  in  the  syllabus 
of  the  case,  the  distinction  is  kept  up  and 
stated  as  follows : 

"  When  the  vendee  refuses  to  receive  and 
pay  for  ordinary  goods,  wares,  and  mer- 
chandise, which  he  has  contracted  to  pur- 
chase, the  measure  of  damages  which  the 
vendor  is  entitled  to  recover  is  not  ordi- 
narily the  contract  price  for  the  goods, 
but  the  difference  between  the  contract 
price  and  the  market  price  or  value  of  the 
same  goods  at  the  time  when  the  contract 
was  broken. 

"But  when  an  artist  prepares  a  statue 
or  picture  of  a  particular  person  to  order, 
or  a  mechanic  makes  a  specific  article  in 
his  line  to  order,  and  after  a  particular 
measure,  pattern,  or  style,  or  for  a  partic- 


SIIAWIIAN  V.  VAN  NEST. 


729 


ular  uHe  or  purpose— when  he  has  fully 
perfDi'mcfl  his  purl  of  tlio  contract,  iiinl 
tendered  or  offered  to  deliver  the  article 
thus  moiiufactured  according  to  i-ontruct, 
anil  the  vendee  refuses  to  receive  and  pay 
for  tlie  same,  he  may  recover  as  daniaKes, 
in  an  action  against  the  vendee  for  breacii 
of  the  contract,  the  full  contract  price  of 
the  manufactured  article." 

As  has  been  said,  we  arc  not  called  upon 
now  to  determine  whether  the  distinction 
as  drawn  in  the  clauses  quoted,  is  sound 
on  principleor  not:  but  bethat  as  it  may, 
we  recognize  the  law  applicable  to  the 
case  before  us  as  being  correctly  stateil  in 
tbe  clause  last  quoted. 

Judge  Swan,  in  his  excellent  "Treatise," 
(loth  ed.  7H0),  in  speaking  of  the  effects  of 
a  tender  upon  the  rights  of  fl-.e  buyer  and 
seller,  and  of  the  damages  in  such  case, 
says.  "The  general  rule  in  relation  to  the 
rights  of  a  seller,  under  a  contract  of  sale, 
where  he  has  tendered  the  property,  and 
the  buyer  refuses  t<i  receive  it,  is  this  :  The 
seller  may  leave  the  property  at  some  se- 
cure place,  at  or  near  the  place  where  the 
tender  ought  to  be  and  is  made,  and  re- 
cov-er  the  contract  price;  or  ho  may  keep 
it  at  the  buyer's  risk,  using  reasonable  dil- 
igence to  preserve  it,  and  recovt-r  the  con- 
tract price  and  expenses  of  preserving  and 
keeping  it;  or  ho  may  sell  it,  and  recover 
from  the  buyer  the  difference  between  the 
contract  price  and  the  price  at  which  it 
fairly  sold."  The  rule  as  thus  laid  down 
was  first  published  in  ls;jG,  two  years  after 
the  decision  in  Hadly's  Case,  above  re- 
ferred to,  which  was  substantially  fol- 
lowed by  .Judge  Swan  in  laying  it  down. 
It  does  not  appearthat  either  the  deci.sion 


or  the  rule  as  laid  down  hoR  ever  been 
questioned  in  Ohio.  It  will  be  pi-rcelved 
that  .Jud^e  .Swiin  lays  down  the  rule  gen- 
erally as  applicable  to  all  sales  of  chnttels 
in  the  ordlnari"  course  nt  trade,  without 
intimating  any  such  distinrtion  as  that 
drawn  in  Gordon  v.  Norris.  We  sanction 
and  n[»ply  the  rule  In  the  determination  of 
the  particular  (•a^le  before  iis.  Whc-n  the 
Iilsinlift  below  had  completed  and  ten- 
dered the  carriage  in  strict  pcrfijrmance  of 
the  contract  <in  his  part,  if  the  defendant 
below  had  accepted  it,  as  he  agreed  to  do, 
there  is  no  (luestlon  but  that  he  would 
have  been  liable  to  pay  the  full  contrnct 
price  for  it,  and  he  can  not  bo  permitted 
to  place  the  plaintiff  in  a  worse  condition 
by  breaking  than  by  performing  the  con- 
trnct according  to  its  terms  on  his  part. 
When  the  plaintiff  had  completed  and  ten- 
dered the  carriage  in  full  performance  of 
the  contrnct  on  his  part,  and  the  defend- 
ant refused  to  accept  It,  he  had  the  right 
to  keep  it  at  the  defendant's  risk,  using 
reasonable  diligence  to  preserve  It,  and 
recover  the  contract  price,  with  Interest, 
as  damagi's  for  the  breach  of  the  contrnct 
by  the  defendant.  Or,  at  his  election,  he 
could  have  sold  the  cirriage  for  what  It 
wouhl  have  brought  at  a  fair  sale,  and 
have  recovered  from  the  defendant  the 
difference  between  tbe  contract  price  and 
what  it  sold  for. 

The  court  behjw  did  not  err  In  refusing 
to  give  to  the  jury  the  special  instructions 
requested  by  the  defendant  below. 

Motion  overruled. 

McIlvV.MNH.  C.  .7.,  and  WELCH, 
WlIITt:,  and  HKX,  .TJ.,  concurred. 


SHELDOX  V.  CAl'liOX. 


731 


SHELDON  et  al.  v.  CAPRON. 

(8  R.  I.  171.) 

Supreme  Court  of  Rhode  Island.    Sept.  Term, 
1855. 

Heplcvin  by  Slielilon  &  Bart«ri  nuninst 
Cliarle.s  S.  ('apron.  Verdict  for  plainliffn, 
and  (Iffeiulaiit  exrepts.  ExceptiuiiH  over- 
ruled. 

PlaintiffH  were  nucfioneers,  and  in  De- 
cember, ]s.'>:}, Hold  at  aiictioii  a  Inrjre  i|iihii- 
titj  of  jewelry,  arrantred  for  sale  in  boxes 
and  packaKeB  numbered  fr<jin  1  to  ."Jli. 
Printed  cutaloKues  were  distributed,  and 
the  packanen  and  boxes,  as  siieees«ivel.v 
offered  for  sale  by  auniber,  were  exhibited. 
Hox  No.  L'4,  eontainiifj;  14  1-0  dozen  liard 
solder  rinus,  worth  $:!,:;.")  (ler  dozen,  were 
struck  off  to  Mathewson  &  .Mlrn  ;  and  No. 
L'.'),coiitaininj;;  s  l-d  dozen  soft  solder  rinfis, 
was  struck  (jff  at  $2.S7  per  dozen,  to  (le- 
fendant.  After  the  sale,  plaintiffs' clerk, 
by  mistake,  delivered  to  defendant  box 
No.  L'4.  which  defendant  paid  for  as  beiUK 
the  box  on  wliicli  he  bid,  and  there  was 
some  eviilence that  the  hox  passed  around 
at  the  sale  as  No.  I'.'i  wf.s  that  which  plain- 
tiffs claimed  to  have  been  No.  :.'4,  struck 
off  to  Mathewson  &  Allen.  Plaiiitiffs 
broHt;ht  this  action  on  defendant's  relusal 
to  return  No.  '_'4  and  its  contents,  they 
tenderint;  him  No.  "J."!.  The  court  charged 
the  jury  tliat  if  they  were  Butisfied  that. 
throuKh  a  mistake  at  the  sale  or  in  the 
delivery,  defendant  obtained  the  wi-onft 
box,  and  thus  jjot  more  than  he  payed  for, 
or  a  superior  article,  ami  that  he,  on  de- 
mand for  box  No.  24  and  a  tender  of  box 
•Jo  bein^  made,  had  refused  to  correct  the 
mistake,  plaintiffs  wereentitled  to  recover. 

Laphnm,  for  jjlnintiffs.  .James  'i'lllin^- 
hast,  for  defendant. 

STAPL.EIS,  C.  J. — We  see  no  error  in  the 
charij;o  of  tlie  court  which  will  justify  us 
in  directing  a  new  trial  to  be  hud  in  this 
case. 

It  the  plaintiffs  handed  out  box  No.  J.'i, 
which  did  contain  s  l-G  duz.  tilled  ami 
chased  soft  solder  rin;r'<.  and  put  It  up  at 
auction  culling  it  No.lM  which  did  contain 
14  1-6  uozens  Idled  and  chased  liard  solder 
rinus,  and  it  was  bid  upon  and  finally 
struck  off  by  them  to  ilathewson  &  .Mien, 
it  cannot  be  pretended  that  the  purchasers 
would  be  recpiired  to  take  it  as  their  bid. 
The  minds  of  the   parties   never   met.     No 


contract  was  made  between  tliem.  Tim 
plaintiffs  were  sellinK  one  thiaK  atid  Ntnth- 
ewson  &  .Mien  purchasiiiK  or  rather  bid- 
dint;  upon  anolhcr. 

So,  too.  if  plaintiffs  did  set  up  h«)x  .No. 
2.")  and  strike  it  off  to  .Mnthewson  4  Allen 
at  their  bid  for  it,  tl'i-y  could  not  compel 
M.  &  A.  to  take  box  No.  -.'4,  and  that  sim- 
ply iKK-ause  .\I.  &  A.  never  bought  It,  unJ 
never  l)iil  anythinu  for  It.  The  HUpposcd 
purchasers  in  both  iUHtances.  would  deem 
it  very  hard  to  be  compelled  to  take  what 
they  did  not  purchase  nor  bid  for,  nor 
want,  an  article  of  inferior  ({uallty  and 
value  to  that  contained  in  box  .No. 'l.>4.  If 
thatsupposed  purchasercould  not  becom- 
pelled  to  fulfil  his  supposed  liarKain  under 
these  circuniHtances,  neither  <-ould  the 
plaintiffs,  where  box  No.  L'4,  the  box  o( 
;rreater  value,  was  by  mistake  substituted 
for  box  No.L'."i.  oneof  less  value.  The  same 
reason  would  govern  both  casi-s.  and  that 
is  one  mimed  in  the  chnr>;e  excepted  to 
by  the  defendant,  the  mistake  of  the  par- 
ties. 

When  the  plaintiffs  set  up  box  No.  24,  it 
was  box  No.  24  un  their  catalogue,  the 
sale  beini;  by  catalogue  and  the  number 
having  referen<'e  to  it.  It  was  No.  LM  with 
the  contents  describeil  In  No.  24  on  the  cat- 
alogue. II  box  No.  Jj  on  the  same  cata- 
logue were  exhiltited  as  box  No.  24  and  so 
bid  upon  anti  purchascil.  still  the  pur- 
chaser would  have  a  right  to  box  No.  24, 
and  no  other.  That  was  the  box  which 
tlie  plaintiffs  set  up  at  auction,  and  that 
till'  <ine  the  purcliasers  bid  upon  and 
bouiiht.  If  any  other  box  should  after- 
ward be  delivered  or  offered  to  the  pur- 
chaser, he  would  of  riclit  turn  to  his  cata- 
logue and  lequire  the  liox  .No.  24  of  the 
calaUjgue  Willi  its  contents,  as  he  would 
not  be  bound  to  take  as  liox  Ni>.  24,  one 
which  was  «)f  h-ss  value  and  contained 
different  articles  from  f  liecntnlogue.No.  24. 
So  he  could  not  legally  keep  them.  If  they 
proved  of  greater  value.  II  on  calling  for 
his  purchase  the  plaintiffs  shoulil  offer  him 
the  trueb>)X  .No.  24,  which  they  sold,  but 
wliii-h  in  fact  was  not  the  box  nhicli  iliey 
exhibited,  and  which  hebid  forand  boimht 
as  box  .N'o.  24,  he  could  refuse  to  ri-ceive  it  on 
the  ground  of  mistake,  as  he  supposed  he 
bought  one  and  the  plaintiffs  suppose*! 
they  had  sidil  another.  Neither  the  one 
nor  tlie  other  was  sold,  but  the  title  to 
each  remained  unchanged. 

New  trial  refused. 


SUEinvooD  c   WAI.KEU. 


733 


SHERWOOD  V.  WALKEK  et  al. 

(3:t  N.  W.  Rep.  919,  66  Mich.  50^.) 

Supremo  Court  of  Micbigau.     July  7,  18S7. 

lOrror   to  circuit  court,  Wayne  county  ; 

.loiiniHon,  Juil^c. 

C.  J.  Reilly,  l«r  plaintiff.     \Vm.    Ail^miin 
.Jr.,  (D.  C).    Holhrook,   of  couhhcI,)  for  de- , 
fendantH  and  appolliintH. 

MOHSlC,  J.  Itoplcvin  for  n  cow.  Suit  j 
coinnicnccd  in  juHtioo's  court;  ju<l(^iiit'iit 
for  plaintiff ;  appealed  to  circuit  court  of 
Wayne  county,  and  verdict,  and  juiljiuii-nt 
for  plaintiff  iu  tliat  court.  Tlieilcfeiidants 
briug  error,  and  set  out  25  aHHiRnnientH  of 
the  Hanie. 

The  main  contr4)verHy  depetnlH  upon  the 
construction  of  a  con  tract  for  the  Hale  of 
the  cow.  The  plaintiff  claims  iliat  tlie 
title  pa.ssed,  and  linseH  hi«  action  upon 
Huch  claim.  The  defendnntH  contend  that 
the  contract  was  executory,  and  liy  itM 
terms  no  title  to  the  animal  was  aciiuireil 
liy  plaintiff.  The  defendants  reside-  at 
Detroit,  l)ut  are  in  husiness  at  WalUerville, 
Ontario,  and  have  a  farm  at  Greenfield, 
in  Wayne  county,  upon  which  were  some 
blooded  cattle  supposed  to  he  liarreu  as 
breeders.  The  Walkers  are  importers  and 
breeders  of  polled  Aukum  cattle.  The 
I)lalntiff  is  a  banker  living  at  I'lymoutli, 
in  Wayne  county.  He  calk-il  upon  the  de- 
fendants nt  Walkerville  for  the  i)urcliase 
of  some  of  their  stock,  but  fouud  none 
there  that  suited  him.  Meeting;  one  of  the 
defendants  afterwards,  he  was  informed 
thattliey  had  a  few  head  uiion  this  (Jreen- 
lield  farm.  He  was  asked  to  Ko  out  and 
look  at  them,  with  the  statement  at  the 
time  that  they  were  probaldy  barren,  a. id 
would  not  breed.  May  r>.  isso,  plaintiff 
went  out  to  (jreenfieUl,  and  saw  the  cat- 
tle. A  few  days  thereafter,  he  called  u|ion 
one  of  the  defendants  with  the  view  of 
purchasing  a  cow,  known  as  "  Kose  ".'d  of 
riberlone."  After  consiilerable  talk,  it 
was  agreed  that  defendants  would  tele 
phone  Sherwood  nt  his  home  in  (Mvmouth 
in  rc^feience  to  the  price.  Thesecond  morn- 
ing alter  ttiis  talk  he  was  called  up  by  tele- 
phone, anil  the  terms  of  the  sale  were 
linally  agreed  upon.  He  was  to  iiay  live 
and  one-half  cents  per  pound,  live  weight, 
fifty  pounds  shrinkage.  He  was  asked 
how  he  intended  to  take  the  cow  home, 
and  replied  that  he  might  sliii)  her  from 
King's  rattk'-yard.  He  reiiuested  defend- 
ants to  conlirin  the  sale  in  writing,  wliicii 
tliev  did  bv  sending  him  the  following 
letter:  "Walkerville.  May  !.">.  IS-ti.  T.  (;. 
Shei'wood,  President,  etc.— Dear  Sir:  We 
confirm  sale  to  yon  of  the  cow  Kose  '2i\  of 
Aberlone,  lot  ')«  of  our  catalogue,  at  (Ive 
and  a  half  cents  per  pound,  less  (ifty 
|)()unds  shrink.  Wo  in.dose  herewith  or- 
der on  Mr.  (Iraliam  for  the  cow.  Yon 
might  leave  (diecli  with  him,  or  mail  to  us 
her(>,  as  you  prefer.  Yours,  truly,  Itlram 
Walker  &  Sons."  The  order  upon  (ira- 
ham  inclosed  in  the  letter  read  as  follows. 
"Walkerville,  May  l.">,  1^>^I",.  Ceotge 
(irahnm:  You  will  pleasedeliverat  King's 
cattle-yurd  to  Mr.  T.  C.  Sherwood,  IMyni- 


nnth.  the  cow  Kohp  '.'d  of  Aberlone,  lot 
iV;  of  our  cntaiogiie.  Send  l.alter  willi  the 
cow,  ami  have  her  weighed.  Yours  trulv. 
Hiram  Walker  &  Sons.  "  On  ihe  twenty- 
first  of  tlie  same  month  the  |ilaintirf  went 
to  ilefenilanls'  farm  at  (Jreenlield.  and 
presenlerl  the  order  and  letter  to  liralinin, 
who  informed  him  that  the  ib-fendantH 
had  instructed  hini  not  to  deliver  the  row. 
Soon  after,  the  pl;iintjff  tendered  to  Hiram 
Walker,  one  of  the  derenilnatH,  $•>().  and 
demanded    the    cow.     Walker    relnseil    to 

take  the  i ley  or  deliver    the   cow.     The 

plainlilf  then  instituted  this  suit.  After 
he  had  Mccured  pohm'shIoii  of  the  cow  un- 
der the  writ  of  reiilevin,  the  plaintiff 
caused  her  to  be  weighed  by  the  constable 
who  served  the  writ,nt  a  placeother  than 
King's  cattle-yard.  She  weiuhed  1,4J0 
pounds. 

When  the  plaintiff,  upon  the  trial  in  the 
cir<-nit  court,  had  sulimltted  his  proofH 
showing  the  above  transaction,  defend- 
ants moved  to  strike  out  niKl  e.xcbiile  the 
t<-stirnony  from  the  case,  for  the  reason 
that  it  was  irrelevant  and  did  not  lend  to 
show  that  the  title  to  the  cow  passed, 
and  tliat  it  showeil  that  the  contract  of 
sale  was  merely  executory.  The  court  re- 
fused the  motion,  and  an  exception  was 
taken.  The  defendants  then  Introduced 
evidence  tending  to  sliow  that  at  the  time 
of  the  alleged  sale  it  was  believed  by  both 
the  plaintiff  and  themselves  that  the  cow 
was  barren  aii<l  would  not  breed;  that 
she  cost  $s."il),  and  if  not  barren  would  lie 
worth  fioiii  *7.'(l  to  ?l.(l(lu;  I  lint  after  the 
date  of  the  letter,  and  the  order  to  (ira- 
liani.  the  defendants  were  inrorine<l  l»y 
said  Graham  that  in  liin  judgment  tliecow 
was  with  calf,  and  therefore  they  In- 
structed hini  not  to  deliver  her  to 
l)laintiff.  and  on  the  tweniietli  of  May, 
IsMi.  telegraphed  to  the  plaintiff  what 
Graham  thought  about  the  c>iw  being 
with  calf,  and  that  coiiHciiuently  they 
could  not  sell  her.  The  cow  had  a  calf  in 
the  month  of  October  following.  On  the 
nineteenth  of  .May,  the  plaintiff  wrote 
Graham  as  follows:  "  I'lymouth,  .May  lit, 
Is.sd.  Mr.  George  Graham.  Greenfli-ld  — 
Dear  .Sir:  I  have  bought  Itose  or  I  ucy 
from  Mr.  Walker,  and  will  be  there  for  her 
I'riday  morning,  nine  or  ten  n'idock  Do 
not  water  her  in  the  morninir.  Yimrs. 
etc.,T.t'.  Slierwooil."  IMaintiff  e.vpbiineil 
the  mention  of  the  two  cows  in  tlils  letter 
by  testifying  that,  when  he  »■  rote  this  let- 
ter, the  Order  ami  letter  of  ilefendiints 
were  at  his  house,  and,  writing  in  a  hurry, 
and  being  uncertain  as  to  the  nniue  of 
the  cow,  and  not  wishing  his  row  wn- 
leved.  he  tli<iuglit  it  would  ilo  no  harm  to 
name  them  both,  as  his  bill  of  sale  would 
show  which  one  lieliad  purchased,  riain- 
tiff  also  tcKtilled  that  he  axked  ilpfendants 
to  give  him  a  price  on  the  lialance  of  their 
herd  nt  Greeiilleld,  as  a  friend  thougli:  of 
buying  some,  and  riH-eived  a  letter  dated 
.May  IT.  l>v*«i.  in  which  they  named  the 
price  of  live  cattle,  including  I. ucy.  at  f'.K». 
and  Kose  I'd  at  ?mi.  When  he  received  the 
letter  he  called  d.fcmlanis  np  by  tele- 
phone,>ind  iixked  tlicMiwhy  they  put  Kose 
■_M  In  the  li-l.  as  he  lia<l  iilready  |  iin-hnsed 
lier.     They  replied  that  they  knew  he  hod. 


734 


SHKRWOOD   D.  WALKER. 


but  thoiiRl-.t  it  would  make  no  difference 
if  plaintiff  and  his  friend  concluded  Intake 
the  whole  herd. 

The  (oretcuinK  Is  the  substance  of  all  the 
testimony  in  th(!  case. 

The  circuit  judse  instructed  the  jury 
that  if  they  believed  the  defendiints,  when 
they  sent  the  order  and  letter  to  plaintiff, 
meant  to  pass  ilie  title  to  the  cow,  and 
that  the  cow  was  intended  to  be  delivered 
to  plaintiff,  it  did  not  matter  whether  the 
cow  was  weighed  at  any  particular  place, 
or  by  any  particular  person;  and  if  the 
cow  was  weighed  afterwards,  as  Sher- 
wood testified,  such  weiKhinji  would  be  a 
sutiicient  compliance  with  the  order.  If 
they  believed  that  defendants  intended  to 
pass  the  title  by  the  writing,  it  did  not 
matter  whether  the  cow  was  weighed 
before  or  after  suit  brought,  and  the 
plaintiff  wouhl  l>centitled  to  recover.  The 
defendants  submitted  a  number  of  re- 
quests which  were  refuted.  The  substance 
of  them  was  that  the  cow  was  never  de- 
livered to  plaintiff,  and  the  title  to  her  did 
not  pass  by  the  letter  and  order;  and 
that  under  the  contract,  as  evidenced  l)y 
these  writings,  the  title  did  not  pass  until 
the  cow  was  weighed  and  her  price  there- 
by determined;  and  that,  if  the  defend- 
ants only  agreed  to  sell  a  cow  that  wouhi 
not  breed,  then  the  barrenness  of  the  cow 
was  a  condition  precedent  to  p^issing  title, 
and  plaintiff  cannot  recover.  The  court 
also  charged  the  jury  tliat  it  was  imma- 
terial whether  the  cow  was  with  calf  or 
not.  It  win  therefore  be  seen  that  the 
defen<lants  claim  that, as  a  matter  of  law, 
the  title  to  this  cow  did  not  pass,  and 
that  the  circuit  judge  erred  in  submitting 
the  case  to  the  jury,  to  be  determined  by 
them,  ui)on  the  intent  of  the  parties  as  to 
vvhetlier  or  not  the  title  passed  with  the 
sending  of  the  letter  and  order  by  the  de- 
fendants to  the  plaintiff. 

'J'his  (juestion  as  to  the  passing  of  title 
is  fraught  with  difticulties,  and  not  al- 
ways easy  of  solution.  An  examination 
nf  the  multitude  of  cases  bearing  upon 
this  subject,  with  their  infinite  variety  of 
facts, andat  least  apparent  conflict  of  law, 
oftimes  tends  to  confuse  ratlier  than  to 
enlighten  the  niind  of  the  Inquirer.  Jt  is 
best,  therefore,  to  consider  always,  in 
cases  of  this  kind,  the  general  principles 
of  the  law,  and  then  apply  them  as  best 
we  may  to  the  facts  of  the  case  in  hanil. 

The  cow  being  worth  over  SiJd,  the  con- 
tract of  sale,  in  order  to  be  valid,  must  be 
(jne  where  the  purchaser  has  received  or 
accepted  a  part  of  the  goods,  or  given 
something  in  earnest,  or  in  part  payment, 
or  where  the  seller  has  signed  soraenoteor 
memorandum  In  writing.  How..St.  §  (ilSli. 
Here  there  was  no  actual  delivery,  nor 
anything  given  in  payment  or  in  earnest, 
but  there  was  a  sufficient  memorandum 
signed  by  the  defendants  to  take  the  case 
out  of  the  statute,  if  the  matter  contained 
in  such  memorandum  Is  sufficient  to  con- 
stitute a  completed  sale.  It  is  evident 
from  the  letter  that  the  payment  of  the 
purchase  price  was  not  intended  as  a  con- 
dition precedent  to  the  [.assing  of  the 
title.  Mr.  Sherwood  is  given  his  choice 
to  pay  the  money  to  Graham  at  King's 
cattle-yards,  or  to  send  check  by  mail. 


Nor  can  there  be  any  trouble   about  the 
delivery.     The   order  instructed    (Jraliam 
to   deliver   the  cow,  upon  presentation  of 
the   order,  at   such  cattle-yards.     But  the 
price  of  the  cow  was  not  determined  upon 
to   a   certainty.     Uefore   this  could  be   as- 
certained, from    the  terms  of  the  contract, 
!  the  cow  liad  to  be  weighed:  and,  by    the 
I  order   inclosed    with    the    letter,  Graham 
I  was   instructed    to    have  her  weighed.     If 
the  cow  had  been  weighed,  and   this  letter 
i  had  stated,  upon  such  weight,  the  expiess 
I  and   exact   price  of   the  animal,  there  can 
I  be   no   doubt    but    the    cow    would   have 
I  passed    with    the    sending  and    receipt   of 
I  the  letter  and  order  by  the  plaintiff.    Fay- 
;  meat   was    not    to    be    a    concurrent    act 
with    the   delivery,  and    therein    this  case 
differs   from   Case    v.  Dewev,  5o   Mich.  Il(j, 
L'O   N.  W.  Kep.  S17,  and    21    N.  W.  Hep.  Ull. 
Also,  in  that  case,  there   was   no    wiitten 
memorandum    of   the  sale,  and  a  delivery 
was  necessary    to   pass    the    title    of   the 
slieep;  anil  it  was  held  that  such    delivery 
could   only    be  made  by  a  surrender  of  the 
:  possession    to    tlie   vendee,  and  an  accept- 
ance by  him.    Delivery  by  an  actual  traus- 
:  fer  of  the  property  from  the  vendor  to  the 
vendee,  in    a  case   like   the   present,  w  here 
the  article  can  easily    be  so  transferred  by 
;a    manual   act,  is  usually  the  most  signifi- 
[cant   fact  in  the   transaction  to  show  the 
intent   of  the  [larties  to  pass  the  title,  but 
it  never  has  been  held  conclusive.     Neither 
the   actual     delivery,   nor   the   absence  of 
such  delivery,  will  control  the  case,  where 
the  intent  of  the  parties  is  clear  and  mani- 
fest that  the  matter  of  delivery  was  not  a 
!  condition    precedent   to  the  passing  of  the 
title,  or   that   the   delivery  did    not   carry 
■  with  it  the  absolute  title.    The  title  may 
pass,  if   the   parties    so   agree,  where   the 
statute  of  frauds  does  not  interpose  wlth- 
I  out  delivery,  and    jiroperty    may  be  deliv- 
'  ered  with  the  understanding  thsit  the  title 
shall  not  pass  until  some  condition  is  jier- 
formed. 

And  whether  the  parties  intende'l  the 
I  title  sliould  pass  before  delivery  or  not  is 
!  generall.v  a  question  of  fact  to  be  deter- 
mined by  the  jury.  In  the  case  at  bar  the 
question  of  the  intent  of  the  parties  was 
submitted  to  the  jury.  This  submission 
Was  right,  unless  from  the  reading  of  the 
letter  and  the  order,  and  all  the  facts  of 
the  oral  bargaining  of  the  parties,  it  Is 
perfectly  clear,  as  a  matter  of  law,  that 
the  intent  of  tlie  parties  was  that  the  cow 
should  he  weighed,  and  the  price  thereby 
accurately  determined,  before  she  should 
become  the  property  of  the  jjlaintlff.  I 
do  not  think  that  the  intent  of  the  i)arties 
in  this  case  is  a  matter  of  law,  but  one  of 
fact.  The  weighing  of  the  cow  was  not 
a  matter  that  needed  the  presence  or  any 
act  of  the  defendants,  or  any  agent  of 
theirs,  to  be  well  or  accurately  done.  It 
could  make  no  difference  where  or  when 
she  was  weighed,  if  the  same  was  done 
upon  correct  scales,  anil  by  a  competent 
person.  There  is  no  pretense  but  what 
her  weight  was  fairl.v  ascertained  by  the 
plal!!tiff.  The  cow  was  Bpeclticall.v  des- 
ignated by  this  writing,  and  her  delivery 
ordered,  and  It  cannot  he  said,  in  ray 
opinion,  that  the  defendants  intended 
that  the  weighing  of  the  animal  should  be 


SHERWOOD  V.  WALKER. 


735 


done  bpfore  the  delivery  even,  or  the  pbhr- ' 
ins  of  the  title.  The  order  to  GrahHm  Ih 
to  deliver  her,  ami  then  followH  the  in- 
struction, not  that  he  xhnll  wei^h  her 
hiniHelf,  or  weiKh  her,  or  even  have  her 
weitilied,  before  delivery,  tint  Hiiuply, 
".Send  halter  with  the  cow,  and  have  her 
weighefJ. " 

It  is  evident  to  my  mind  that  they  had 
perfect  confidence  in  the  integrity  and  re- 
HpouHibility  of  the  plaintiff,  and  that  they 
considered  the  sale  perfected  and  com- 
pleted wlien  they  mailed  the  letter  and 
order  to  plaintiff.  They  did  not  intend 
to  place  any  cotiditions  precedent  in  the 
way.  either  of  payment  of  the  price,  or  the 
weiKhiiifT  of  the  cow,  before  the  passinj; 
of  the  title.  They  cared  not  whether  the 
money  was  paid  to  Graham,  or  sent  to 
theui  afterwards,  or  whether  the  cow  was 
weiRhed  before  or  after  she  puuHed  into 
the  actual  manual  Krasp  of  the  plaintiff. 
The  refuhul  to  deliver  the  cow  frrew  en- 
tirely out  of  the  fact  that,  before  the  plain- 
tiff called  upon  Graham  for  her,  they  dis- 
covered she  was  not  barren,  and  therefore 
of  greater  value  than  they  had  solJ  her 
for. 

The  following  cases  in  this  court  sup- 
port the  instruction  ot  the  court  below  as 
to  the  intent  of  the  parties  RoverninK  and 
controlling  the  question  of  n  completeil 
sale,  and  the  passing  of  title:  Linghain 
V.  KKgleston,  27  .Mich.  324;  Wilkinson  v. 
Holiday,  33  Mich.  3S(;;  Grant  v.  Mer 
chants'  &  Manufacturers'  i'.ank,  3.1  Mich. 
r)27;  Carijcnter  v.  Graham,  42  Mich.  l'.)4,  3 
N.  W  Rep.  !>74:  Brewer  v.  Salt  .Vss'n,  47 
.Mich.  .'■)34.  II  N.  W.  Rep.  370;  Whitcomb  v. 
Whitney,  24  Mich.  4><6:  Bvles  v.  C'olier,  ,54 
Mich.  1.  1!)  N.  W.  Rep.  5(ir»;  Scotten  v. 
Sutter,  37  Mich.  527,  532;  Diicey  Lumber 
Co.  v.  Lane.  .iS  Mich.  .520,  ,'125.25  N.  W.  Rep. 
.5GS;  Jenkinson  v  Monroe,  fil  Mich.  454,  2S 
N.  W.  Rep.  663. 

It  ai)pears  from  the  record  that  both 
partie.-(  supposed  this  cow  was  barren  and 
would  not  breed,  and  she  was  solil  by  the 
pounil  for  an  insljinilicant  sum  as  com- 
pare<l  with  her  real  value  if  a  breeder.  She 
was  evidently  sold  and  purchased  on  the 
relation  of  her  value  for  beef,  unless  the 
plaintiff  had  learned  of  her  true  condition, 
and  concealed  such  knowledge  from  thede- 
fendants.  Before  theplaintiff  secured  pos- 
session of  the  animal,  the  defendants 
learned  that  she  was  with  calf,  and  there- 
fore of  great  value,  and  unilertook  to  re- 
scind the  sale  by  refusing  to  deliver  her. 
Tlie  question  arises  whether  they  had  a 
right  to  do  so.  The  circuit  judge  ruled 
that  this  fact  did  not  avoid  the  sale 
and  it  made  no  difference  whether  she 
was  barrt-n  or  not.  1  am  of  the  opinicm 
that  the  court  erred  in  this  holding.  I 
know  that  this  is  a  close  (piestion,  and 
the  dividing  line  between  the  adjudicated 
cases  is  not  easily  discerned.  But  it  must 
he  considered  as  well  settled  that  a  party 
who  has  given  an  afiparent  consent  to  a 
contract  of  sale  may  refuse  to  execute  It, 
or  he  may  avoid  it  after  it  has  been  cv»m- 
pleted,  if  the  assent  was  foumled,  or  the 
contract  made,  u|>ou  the  mistake  of  ji  ma- 
terial fact, — such  as  the  subject-matter  of 
the  sale,  the  price,  or  some  collateral  face 


materially  inducing  the  agreement;  and 
this  can  be  done  when  the  mistake  is  ma- 
tual.  1  Henj.  Sales,  55  (;05,  OWJ;  Leake, 
t'ont.  :«U;  Story.  Sales,  (4th  Kd.)§J3r7, 
14S.  See,  also,  <"utts  v.  (Juilil,  57  N.  Y. 
220;  Harvey  v.  Harrln,  112  .Mass.. ■J2;  <Jurd- 
ner  v  Lane,  9  .\llen.  4'JJ,  12  Allen,  44; 
Ilnthmacher  v.  Harris'  Adm'rs,  .3s  Fa.  St. 
4'.»l  :  liyers  v.  thapin,  2s  Ohio  St.  300;  Gib- 
son v  l'elkii-.:!7  .Mich.  3SI».  ond  cnse!*  cited; 
-Mien  v.  Haniraond,  11  I'et.  ^'{-71. 

If  there  is  a  difference  or  ndsapprehen- 
sion  as  to  the  substance  of  the  thing  bar- 
gained for;  if  the  thing  actually  dellven>d 
or  rei-eived  is  different  in  snbhtnnce  from 
the  tiling  bargained  for,  and  inten'led  to 
be  Bolcl,— then  there  is  no  contract;  but  1( 
it  be  oidy  a  difference  in  some  quality  or 
accident,  even  though  the  niistake  may 
have  been  the  iictuating  motive  to  the 
purchaser  or  seller,  or  both  of  them,  yet 
the  contract  remains  binding.  "Tlie  dldi- 
culty  in  every  case  is  toiletermine  whether 
the  mistake  or  mlsa|>prehensio!!  is  n8  tu 
the  substance  of  the  whole  contract,  go- 
ing, as  it  were,  to  the  root  of  the  mat- 
ter, or  only  to  some  pcdnt,  even  though  a 
material  point,  an  error  as  to  which 
does  not  affect  the  substani'e  of  the  wbide 
consideration."  Kennedv  v.  I'annma. 
etc.,  .Mad  Co.,  L.  R.  2  Q.  "R.  .5M(.  5s7.  It 
has  l)een  held,  in  accordance  with  the  prlti- 
ciples  above  (Stated.  th;i  t  where  a  horse 
is  bought  under  the  belief  that  he  is  sound, 
and  both  vendor  and  vendee  honestly 
believe  him  to  l)e  sound,  the  purchaser 
must  stand  Ity  his  barg.iin,  and  pay  the 
full  price,  uidess  there  was  ji  warranty. 

It  seems  to  n)c'.  however,  in  the  case 
made  by  this  record,  that  the  mistake  or 
uiisapitrehension  of  the  parties  went  to 
the  wlude  substance  of  the  agreement. 
If  the  cow  was  a  lireeder,  she  was  worth 
at  least  $7.50;  if  barren,  she  was  wortli 
not  over  $s(i.  The  fiarties  would  not 
have  made  the  contract  of  sale  except 
upon  the  nnderstandingund  Ix-lief  thatshe 
was  iuca|)able  of  breeding,  and  of  no  useas 
a  cow.  It  is  true  she  is  now  the  identical 
animal  that  they  thought  her  to  be  «vhen 
the  contract  was  made;  there  Is  no  mis- 
take ns  to  the  iih'Utity  of  the  creature. 
Vet  the  mistake  was  not  of  the  mere  qual- 
ity of  the  animal,  but  went  to  thi-  very 
nature  of  the  thing.  A  liarren  cow  is  onli- 
stantially  a  different  creature  than  a  breed- 
ing one.  There  is  as  much  difference  be- 
tween them  for  all  purposes  of  use  as  there 
is  between  an  ox  anil  a  cow  that  iscapal>le 
of  brc'ding  and  giving  milk.  If  the  mu- 
tual ndstake  had  simply  related  to  the  fact 
whethe"  she  was  with  calf  t)r  not  for  one 
season,  then  it  might  have  been  a  good 
sale,  but  the  mistake  affected  the  char- 
acter of  the  animal  for  all  time,  and  for 
her  present  and  ultimate  axe.  She  wan 
not  in  fact  the  aniiual.  or  the  kind  of  ani- 
mal, the  defi'ndantrt  intentleil  to  sell  or 
theplaintiff  to  tiny.  She  was  not  a  bar- 
ren cow,  and.  if  this  fact  had  tiei-n  known, 
there  would  have  been  no  i-ontract.  The 
mistake  affected  the  substance  of  the 
whole  cimsideration,  and  It  mustbecon- 
sidcred  that  there  was  no  contract  to  sell 
or  sale  of  the  cow  as  she  actually  was. 
The  thing  sold  and  bought  had  in  fact  uo 


7:56 


SHERWOOD  V.  AVAI.KER. 


f 


existence.  She  was  sold  aa  a  beef  crea- 
ture would  be  sold  ;  she  is  in  fact  a  breed- 
ing cow,  and  a  valuable  one.  The  court 
shoulil  have  instructed  the  jury  that  if 
they  found  that  the  cow  was  sold,  or  con- 
tracted to  be  sold,  upon  the  understand- 
inn  of  both  parties  that  she  was  barren, 
and  useless  for  the  purpose  of  broedinji, 
and  thnt  in  fact  she  was  not  barren,  but 
capable  of  breeding,  then  the  defendants 
had  a  right  to  rescind,  and  to  refuse  to  de- 


liver, and  the   verdict  should   be  in    their 
favor. 

The  judgment  of  the  court  below  must 
he  reversed,  and  a  new  trial  granted,  with 
costs  of  this  court  to  defendants. 

CAMPBELL,  C.  J.,  and  CHAMPLIN, 
J.,  concurred. 

SHERWOOD,  J.,  delivered  a  dissenting 
opinion. 


SHIELDS  V.  PP;TTIE. 


73J 


SHIELDS  et  al.  v.  PETTIE  el  al. 

(4  N.  Y.  123.) 

Court  of  Appeals  of  New  York,  1850. 

AsBumpsit  to  recover  a  quantity  of  plj? 
iron.  Tlie  contract  between  the  partiea 
waw  in  these  wofiIh: 

"New  York,  July  1»,  1847.  Sold  for 
MesKTH.  Georije  \V.  Shields  &Co.,  to  Mchhi-s. 
Petteo  &  .\liuin,  one  hundred  and  fifty 
tons  (Jurtslierrie  pig  iron,  No.l,  ut  $2!)  per 
ton,  one-half  at  six  months,  one-half  cash, 
lesB  four  per  cent.,  on  board  Siddons. 

"ThoniuH  Ingham,  Broker." 

On  the  arrival  of  the  ".Siddons"  tlie  de- 
fendants received  sixty  or  seventy  tons  of 
tlie  iron,  but  on  ascerlnininK  its  inferior 
quality,  declined  to  accept  and  pny  for  it, 
or  the  residue,  as  of  the  qualiti'  required 
by  the  contract.  Tlie  plniutiffs  offered  to 
deliver  the  residue,  which  was  declined, 
and  then  demanded  payment  for  the  por- 
tion delivered  at  the  contract  |)iice,  which 
was  also  refused,  as  was  a  demand  torthe 
return  of  the  iron  delivered.  The  price  of 
No.  1  iron  liad  by  this  time  advanced 
about  $:iS)i)  per  ton  above  the  contriict 
price.  The  defendants  had  parted  with  a 
portion  of  the  iron  before  its  return  was 
demanded. 

The  jury  were  instructed  that  under  the 
circumstances  the  defenilants  were  liable 
by  an  implied  contract  to  pay  for  the  iron 
received  at  its  then  market  value.  Tlie 
plaintiffs  had  judKnient  on  a  verdict  for 
$2,197.3!).  Thedefendants  brouj^ht  this  ap- 
peal. 

W  Hall,  for  appellants.  N.  Hill,  Jr.,  for 
respondents. 

HORLBnT,   .1.      In    my    judcment   the 
contract   was  not   a   sale  but   an   agree- 
ment to  sell,  which  was  not  executed,  and 
which  could  only  be  required  to  be  execut- 
ed   upiiU    the  arrival  of  the   ship  with    the  | 
iron    on    board.     The  arrival  of  the  vessel 
without    the  iron  would  have  put  an  end 
to    the  contract,  which    was    conditional 
as  a  sale,  to  arrive.     The  vessel  was  at  sea 
at  the  time,  this  was  known  to  both  par- 
ties, and  neitlier  could  be  certain,  either  of 
her  arrival  or  of  her  brinjiln^^  the  iron.     If  j 
a    |)art   only    had    arrived,    the    plaintiffs! 
would  not  have  been  bound  to  deliver  norj 
the   defendants    to   accept   it.     There  was 
no    warranty,  express   or  iniplied.   either! 
that  any  iron  should  arrive,  or  that  arriv-j 
inn.  it    should  be  of  a    iiartlcular   (luality. 
One  hundred  and  lifty  tons  of   (iartsherrie  \ 
pifi   iron  of  the  quality  denominated  No.  1 
was  expected    to  arrive  by  the  "Siddons." 
and    the  contract  was   to   the  effect,  that 
if  that  (juaiitity  and  quality  of  iron  did  .so 
arrive,  one  party  should  sell  and   the  otli- 
er  should  receive  it  at  a  certain    price   per 
ton.     The  Iron  called  for  by  the  contract  I 
did  not  arrive,  but  iron  of  a  different  iiual- 1 
ity,  and    I    think    the  contract  wna  at  an 
end.     ( IJoyd  v.  Siffkln.  'J  ("amp.  N.  1'   '.vy<: 
Alcwyn    v.    Tryor,  1    Kyan  &  .Moody,  4()(i; 
Lovatt    V.  Hamilton,  .'>  .Mees.  &  Wels.  C.ii'.t; 
Johnson    v.  Mucdouald,  l)   id.  GOO;  Hussell 
V.  NicoU.  3  Wend.  112.) 

The  jury  were  instructed  that,  under  the 


circumstances  of  the  cobc,  the  law  implied 
a  contract  on  the  part  of  the  detendantH 
to  pay  for  the  iron  which  they  receive<l  at 
the  then  value  of  the  same  In  the  market, 
and  they  found  accordingly;  which,  in 
effect  compelled  the  defendants  to  pny  for 
an  inferior  article  a  grenterprlce  than  that 
stipulated  for  In  the  contract.  This  arose 
from  the  circumstance  of  a  riseln  the  mar- 
ket, intermediate  the  contract  and  the  time 
ofilelivery.  Hut  this  ought  not  to  affect 
the  rule  of  damages  which  cannot  b<-nd  to 
an  accident  of  this  nature,  but  must  re- 
main the  same  in  a  case  like  the  present, 
whether  the  commrjdity  rise  or  fall,  or  re- 
main stationary  in  the  market.  Where, 
upcjn  a  sale  of  goods,  there  is  no  agree- 
ment as  to  the  I, rice,  the  law  implies  a 
contract  on  the  part  of  the  buyer  to  pay 
for  them  at  the  market  value.  The  (>reii- 
ent  case  cannot  be  excepted  from  the  oper- 
ation of  this  rule.  There  was  no  error  In 
the  charge  of  the  learned  judge,  (irovided 
the  law  iniplieii  a  promise  on  the  part  of 
the  defendants  to  pay  any  thing  whatev- 
er for  the  iron  which  they  received.  This 
they  had  taken  in  good  faith.  Hupposlng 
that  it  answered  the  contract,  anil  intend- 
ing to  pny  for  it  nccurdingly  :  but  finding 
it  to  be  of  an  inferior  quality,  they  de- 
clined to  pay  the  contract  price,  and  upon 
a  denian<l  of  the  iron  were  not  in  a  conili- 
tion  to  restore  it,  us  they  had  parted  with 
a  portion  of  it.  They,  however,  had  re- 
ceived (he  iron  rightfully,  in  the  character 
of  vendee.-*,  and  up  to  the  time  of  the  de- 
mand liy  the  plaintiffs,  the  ca^e  exhibits 
notliing  In  the  nature  of  a  tort,  but  sa- 
vors altogether  of  contract.  .After  the  de- 
mand and  refusal,  tlie  case  was  so  far 
modified  u.<to  assume,  tcclinli'ally  at  least, 
the  comfilexion  of  a  tort,  so  (hat  trover 
might  have  beeti  maintained  by  the  plain- 
tiffs. Hut  although  they  might  have 
done  so,  were  they  boimd  to  bring  their 
action  in  that  f-irm.  or  were  they  at  lib- 
erty to  disregard  the  tort  and  to  treat  the 
defendants  as  still  retaining  their  oriuinal 
characters  of  purchasers  of  the  Iron  and 
to  charge  them  accordingly?  I  perceive 
no  reason  why  they  may  not  be  permitted 
to  do  so.  The  goods  were  neither  wrong- 
fully taken,  nor  do  the  defendants  claim 
title  to  them.  The  case  rested  originally 
in  contract,  and  the  only  difference  be- 
tween the  iiartles  related  to  the  price  of 
the  article  delivered.  If  the  (ilaintiffs  had 
brought  trover,  the  rule  of  damages 
would  not  liave  been  more  fa vorable  to 
thedefendants  than  the  on<>  lai<l  down  at 
the  trial,  anil  I  am  unable  to  perceive  In 
what  respect  the\  can  be  injured  by  the 
present  form  of  action.  In  general  It 
woulil  be  the  most  favorable  to  thedetend- 
an(.  Iti  Young  v.  .Marshall  (S  Iting.  43), 
Tindal,  Cli.  J.,  declared  that  no  party  was 
bound  to  sue  in  tort,  when  by  converting 
the  action  Into  one  of  contract  hedocsnot 
prejudice  the  defcmlnnt.  Itis  not  necessa- 
ry to  go  this  length,  nor  as  far  as  the 
court  went  in  Hill  v.  Davis  (3  N.  H.  :IS4). 
(or  th.?  pur|)ose  of  determining  tlie  ques- 
tion before  us;  nor  Is  the  point  presented 
in  the  last  case  of  much  importance,  since 
the  distinctions  which  obtninecl  at  com- 
mon law  in  the  forms  of  action  have  been 
abrogated   In  this  state.     I,  therefore,  al>- 


740 


SHIELDS  V.  PETTIE. 


stain  from  expressing  any  opinion  upon 
it.  It  is  cnousb  for  our  present  purpose, 
that,  in  the  case  'oefore  us,  the  cause  of  ac- 
tion arose  out  oi  an  imperfect  sale  anJ 
delivery  ot  Roods,  and  not  out  of  a  wrong- 
ful tafung  of  them  by  the  defendants; 
that  the  tortious  feature  in  the  case  is 
scarcely  one  ot  substance,  but  is  rather  of 
a  technical  character;  that  in  effect  the 
parties  must  be  deemed  to  hape  agreed  as 


to  every  thing  except  tlie  price  of  the 
goods;  and  that  this  being  so,  the  plain- 
tiffs were  at  liberty  to  disregard  whatev- 
er might  savor  of  tort,  and  require  the  de- 
fendants to  respond  in  their  substantial 
characters  as  purchasers  ot  the  iron  for 
what  it  was  worth  in  the  market. 

The  judgment  of  the  superior  court 
ought  to  be  affirmed. 

Judgment  affirmed. 


SHUFELDT  c.  PEASE. 


743 


SHUFELDT  v.  PEASE  et  aU 

(16  Wis.  659.) 

Supreme  Court  of  Wisconsin.    January  Term, 
1863. 

Appeal  ■from  the  circuit  court  for  Rocli 
county. 

Action  against  Pen  ho  &  BiiUou  for  tlie 
recovery  of  personal  property  unlawfully 
<ietaineil.  A  verdict  was  rendered  for 
the  |)laintiff.  and  the  defendantH  apponled. 
It  was  claimed  on  the  part  of  the  plaintiff 
that  the  defendiint  Ballou,  Ueintt  inwol- 
vent,  fraudulently  purchaned  the  Rood.s 
with  tlie  intention  of  not  fiayingfor  them, 
and  that  he  Hold  and  delivered  them  to 
tlie  defendant  I'eane  in  payment  of  a  pre- 
existinu  debt  which  he  owed  Pease,  and 
that  Pease  therefore  wa.s  not  a  purchnHer 
in  pood  faith.  The  circuit  court  instruct- 
ed the  jury,  amon«  other  thlnes,  "that  a 
person  who  receives  goods  in  i)aynient  of 
a  precedent  debt  from  a  fraudulent  ven- 
dee who  has  jjurcliased  them  with  a  i)rc- 
coiiceived  design  of  not  paying  for  tliern, 
being  inRolvent  at  thetime, could  not  hold 
them  HH  against  the  vendor  of  such  fraud- 
ulent vendee,  and  that  a  person  who 
takes  such  goods  in  fiavment  of  a  i)rior 
indelitedneesls  not  a  bona  tide  purchaser. " 

B.  B.  Eldridge, for  appellants.  Bennett, 
Cassoday  &  Gibbs,  for  rosjiondent. 

PAINE,  .1.  The  court  instructed  the 
jury,  among  other  things,  "  that  a  person 
who  receives  goodsin  fiaynientof  a  preced- 
ent debt,  from  a  fi'audulent  vendee,  that 
is,  from  a  vendee  who  has  purchased  them 
with  a  preconceiveil  design  of  not  paying 
for  them,  being  insolvent  at  the  time,  can- 
not hold  them  as  against  the  vendor  of 
such  fraudulent  vendee;  thata  person  who 
takes  such  goods  in  fiayuient  of  a  |)rior 
indelitedness  is  not  n  bona  tide  purchaser,  " 

Assuming  that  the  fraudulent  vendee 
who  obtained  the  goods  in  the  m;inner 
specified  in  the  instruction,  would  be 
guilty  of  a  fraud  that  the  wale  might  be 
avoided  as  between  him  and  his  vendor, 
we  still  think  the  instruction  erroneous 
in  holding  that  a  purchaser  in  good  faith 
from  such  fraudulent  vendee,  who  took 
the  goods  in  payment  of  a  jjre-existing 
debt,  was  not  a  purchaser  for  value,  with- 
in the  rule  entitling  such  to  protection. 
This  court  has  held  that  where  negotia- 
ble paper  was  taken  in  good  faith  In  pay- 
ment of  a  pre-existing  del)t,  and  the  pur- 
chaser surrendered    a     prior  security,   he 


I  was  a  purchaser  for  a  value  within  the 
rule;  Stevens    vh,  Campbell,    V.i    Wis.,   Xio. 

1  There  i.i,  however, a  distinction  l)etwe<-n  a 
case  where  the  purchaser  surrenders  a 
former  security,  and  a  case  wherehe  mere- 
ly receives  the  profierty  on  a  verltal  agree- 
ment that  it  shall  be  in  |>uynient  of  a  prior 
debt.  In  the  former  case,  he  changes  hiB 
position,  and  gives  up  something  of  value 
to  him  on  the  strength  of  the  property  he 
recoives.  In  the  latter  case  he  docs  not, 
that  is,  assuming  that  if  Ids  title  should 
fail  by  reason  of  his  vendor's  fraud  in  get- 
ting the  goods,  his  debt  would  still  remain 
unsatisfied.  I(  therefore  the  rule  protect- 
ing bona  fide  purchasers  for  value  cf>uld 
be  said  to  rest  upon  the  fact  that  the 
purchaser  has  actually  paited  witli  the 
value  whieh  constitutes  theconsideration, 
solely  on  the  faith  of  the  gou'l^  received, 
there  is  a  distinction  between  cases  where 
the  goods  are  taken  merely  in  payment  of 
a  pre-existing  debt,  and  those  where  the 
purchaser  advances  the  consideration  at 
the  time  of  the  sale,   or  surrenders    prior 

I  securities.  There  are  several  cases  that 
have  urged  with  great  force,  that  in  the 
former  case,  the   purchaser  is   not  within 

I  the  reason  of  the  rule,  ''odflington  vs. 
Bay,  20  Johns,  (i37;  opinion  of  Walwortli, 
Chancellor,  in  Stalker  vn.  McDonald,  6 
Hill,  93. 

But  the  authoritiea  seem  to  have  reject- 
ed the  distinction  and  to  have  settled 
down  by  a  decided  pre|)onderance  on  the 
conclusion  that  such  a  purchaser  is  within 
the  rule.  Youngs  vs.  Lee,  2  Kern.,  .">.jI  ; 
.Marbled  Iron  Works  vs.  Smith,  4  Uuer, 
.'tTli;  Gould  vs.  Segee,  5  Duer,  l'i;o :  Boxbor- 
ough  vs.  Messick  et  al.,  0  Ohio  St..  452; 
Payne  vs.  Bensley,  8  Cal.,  2<jU;  McCnsky 
vs.  Sherman,  24  Conn.,  GO,');  Blanchard  vs. 
Stevens,  3  Ciish.,  1G2. 

These  Ciises  relate  mostly  to  purchases 
of  promissory  notes. 

But  the  question  whether  one  Is  a 
bona  fide  purchaser  for  value  must  he 
decided  in  the  same  way,  ui)on  the  same 
facts,  whether  he  purchases  one  thing  or 
another.  .'Vnd  it  i.s  not  disputeil  that  a 
bona  fide  imrchuser  for  value  from  a 
fraudulent  vendee,  who  ac(|uired  the 
goods  through  a  note  not  void,  but  void- 
able only  by  reason  of  his  fraud,  will  hold 
them  against  the  original  owni'r.  The 
court  having  erred  in  holding  that  one 
taking  such  goods  In  payment  of  a  pre- 
existing debt,  was  not  such  a  purchaser, 
the  judgment  is  reversed,  and  a  new  trial 
ordered. 


SIXCLAIIJ   0.  MATirAWAY. 


745 


SINCLAIR  v.  HATHAWAY. 

(23  N.  W.  Rep.    t'''*.  •■>7   Mi.li.   m.) 
Supreme   <;!ourt   of    Mi(lii«au.      May    13,    ISSo.  ' 
Error  to  Wa.vue;  JeniiiHon,  .Indite. 

Cha|)nnan  &  Stiiitli,  for  apl't^Hunt.  Hclj- 
ert  Laidlaw,  f<»r  apiifllee. 

CAMPBELL,  J.  Plaintiff  sued  defend- 
ant for  a  halance  claimed  to  be  dde  for! 
breai).  Defendant  claimed  that  the  ac- 
count had  been  balanced  l)y  bad  bread  re- 
turned, and  by  a  sum  (jf  $111  paid  in  settle- 
ment of  accountH.  Plaintiff  was  u  bal<er, 
and  <lefendanf8  buHiness  was  to  supply 
bread  to  ciistomiTH  about  the  city.  It 
appears  that  for  a  period  defeniiant  was 
employed  l)y  |ilaintiff  to  sell  his  bread, 
an<l  make  returns  and  iiuy  for  the  bread 
furnished  dally.  Defendant  claims  tluit 
on  several  occasions  the  bread  furnished 
was  bad  and  unwholesome,  and  tliat  he 
returned  it  to  a  sufficient  extent  to  over- 
balance his  payments,  and  that  there  was 
an  understanding^  t(»  that  effect.  The  par- 
ties are  directly  at  variance  on  the  facts. 
There  was  a  ^ood  dealof  testimcjuy  show- 
ing that  bread  was  often  made  unfit  for 
use,  and  that  plaintiff  had  to  sell  it  for 
feeding  animals.  Jle  swore  there  was 
never  any  such  thing.  The  court  below 
rightly  excluded  evidence  of  a  Sunday 
contract  l)efore  the  business  was  entered 
into.  l!ut  tliere  was  testimony  of  subse- 
<iuent  dealings  tending  to  prove  the  the- 
ory of  the  defense. 

Thecaee  being  an  n()pcal  from  a  justice, 
it  was  shown  and  seems  to  liave  been  ad- 
mitted that  in  the  justice's  court  plaintiff 
swore  tliat  the  amount  due  liim  was  only 
?(>.■),  wlule  in  the  circuit  he  swore  to 
:^l();i.7!),  and  recovered  it.  The  court  was 
asked  to  charge  the  jury  that  if  plaintiff 
so  swore  below,  anil  so  changed  his  tes- 
timony without  explaining  wh.v,  that 
circumstance  shoulil  weigh  witli  the  jury 
against  the  good  faith  of  the  claim.  The 
court  refused  so  to  charge,  l)ut  in  the 
charge  the  court  made  this  remark:  "De- 
fendant also  states  that  tlie  complainant 
only  claimed  $(i5  in  justice  court,  but  the 
complainant  uadertakes  to  explain  it  li.v 
saying  that  he  made  a  ujistake,  as   he  did 


not  have  his  bnokn  of  aronunt  witli  him 
at  the  time."  This  had  a  decided  tendency 
to  induce  the  jury  to  regard  thr-  point  un 
of  no  consequenre.  IJut  It  is  not  a  small 
matter  for  a  person  who  goes  into  court 
to  swear  to  his  claim,  to  [lay  ho  little  re- 
gard to  his  oath  as  to  take  no  pains  to 
find  out  what  is  due.  And  beyond  this, 
there  is  nothing  in  the  pIcintiff'H  testi- 
mony to  show  any  Huch  explanation 
given  by  him  on  oath.  The  error  wuh 
material. 

The  court  also  refused  to  charge  that 
plaintiff  was  subject  liy  law  to  an  implied 
warranty  that  tlie  bread  was  wholesonip, 
and  in  the  charge  stated  the  defendant's 
objections  to  apply  chiefly  tr>  itH  market- 
able quality,  anil  to  Its  being  sidled  ex- 
ternally by  getting  ilirty  on  the  door. 
There  was,  however,  testimony  from  sev- 
eral sources  that  the  bread  was  unlit  for 
food,  apart  fi-om  its  external  appearance. 
It  was  held  in  Hoover  v.  Peler^.  IH  .Mich. 
.51,  that  there  is  an  Implied  warranty  of 
wholesomenesH  in  the  sale  of  provisiona 
for  direct  consumption.  This  question  Is 
not  di.scussed  In  plaintiff's  brief,  ami  wos 
left  entirel.v  out  of  view  by  the  court,  and 
the  only  reference  to  it  was  in  connection 
with  an  express  contract. 

In  this  case  defeniiant  was,  as  plaintiff 
claims,  in  his  emph'.v  as  a  peddler,  bound 
to  pay  for  his  bread,  at  a  discount,  and 
his  connection  with  the  sales  brings  the 
case  within  the  same  principle.  Defend- 
ant cannot  l)e  treated  as  apurchnscr  from 
a  wholesale  dealer  of  articles  sold  in  the 
market  for  purposes  of  commerce.  Bread 
is  an  article  sold  for  immediate  consump- 
tion, and  never  enters  into  commerce,  and 
as  one  of  the  prime  necessaries  of  life  is  of 
no  use  unless  it  is  good  for  food.  Defend- 
ant, as  a  mere  middle-man  between  the 
baker  and  the  consumer,  and  actitig  in 
his  employment,  had  a  right  to  expect  bad 
bread  to  be  made  good,  and  the  court 
should  have  so  held.  Mere  externals  he 
could  see  for  himself,  but  bad  quality 
would  not  always  be  detected  without 
Ruch  a  minute  examination  as  the  circum- 
stances of  such  a  business  woulJ  render  it 
dillicult  to  make. 

The  judgment  must  be  revemed.  and  a 
new  trial  grante-i. 

The  other  justices  concurred. 


SMITH  c.  FEKOUSON. 


747 


SMITH  V.  FERGUSON. 

(90  Ind.  223.) 


Supreme  Court  of  India 


May  Term,  1883. 


.1.  M.  La  Hue,  V.  B.  Everett,  W.  C.  W'il- 
Hoii.  nii<l  J.  H.  AilaniH,  for  appellant.  B. 
VV.  Laiif^don,  for  uppclleo. 

IIOWK,  J. — In  liiH  complaint  in  tills  ac- 
tion, tlio  appellant,  the  plai'itiff  hcluvv, 
ulle»;i'(l  in  HuhKtuncc,  that,  as  the  adiiiiniH- 
trator  of  tlicostati-  of  Maliala  T.  .Shu  w, 
OeccaHed,  lie  was  the  owner  anil  entitled 
to  the  pos.ses.sion  of  eifilit  proruiHKor.v 
notes,  each  t""'t'<^'i'l'»''lv  descrihed,  anil 
all  of  the  value  ot  $:.',.')0U;  and  that  the 
appellee  had  possession  of  said  notes  with- 
out I'iK'it,  and  unlawfully  detained  the 
same  from  the  appellant,  at  Tippecanoe 
county;  wherefore,  etc.  The  cause  was 
put  at  iHsue  and  tried  by  the  coui't,  and 
a  findint;  was  made  for  the  appellee,  the 
defendant  helow:  an, 1  over  the  appellant's 
inotion  for  a  new  trial,  and  his  exception 
saved,  the  (-ourt  rendered  judgment  on  its 
linditJi'. 

!n  this  court  the  appellant  has  assij^ned 
as  errors  the  followiiiK  decisions  of  the 
trial  court : 

1.  In  overruling  his  demurrer  to  the 
tliiril  paragraph  of  appellee's  answer; 
and. 

U.  In  overruling  his  motion  tor  a  new 
trial. 

In  the  third  paragraph  of  his  answer, 
the  appellee  alleged  in  substance,  that 
Maliala  T.Shaw,  the  appellant's  decedent, 

on  and  befoie  the day  of   .luly,  1^7.'l. 

was  the  owner  and  holder  of  eight  prom- 
issory uotes,  particularly  describing  them  ; 
that  on  said  last  named  day  the  said 
Mahala  T.  Shaw  delivered  and  entrusted 
all  of  said  notes  into  tht-  hands  and  pos- 
session of  the  apiiellee;  that  contempora- 
neously with  lier  delivery  jf  said  notes  to 
hin..  the  said  Maluila  declared  t(j  aad  di- 
rected the  aiipellee  to  take  the  said  notes 
anil  do  the  '  est  he  could  with  them,  and 
furnish  her,  the  said  Mahala,  with  what 
means  she  needed  to  live  on,  and,  after  her 
death,  pay  what  debts  he  knew  she  owed, 
and  erect  a  monument  for  her  like  the  one 
that  had  been  ordered  for  her  lirother.  Sol- 
omon, and  what  was  left  was  Clarinda  V. 
Ferguson's,  who  was  then  and  since  the 
wife  of  the  appellee,  and  that  the  appellee 
should  give  what  was  left  to  her,  the  said 
Clarinda. 

The  appellee  said  that  he  then  and  there 
received  and  took  possession  of  said  notes 
from  said  Mahala,  under  the  said  declara- 
tion and  terms;  that  afterwards,  in 
March,  1S7(),  the  appellee  e.xchangi'd  one 
of  the  notes  for  live  other  notes  particu- 
larly described;  and  that,  in  .lanuary, 
l.sTT,  ap|)ellee  surrendered  Carr's  note  for 
$•)()  to  said  Carr  on  account  of  a  debt  due 
him  from  said  Mahala. 

The  appellee  further  said  that  the  notes 
described  in  the  complaint  were  the  notes 
described  in  hin  answer;  that  afterwards, 
on  the  7th  day  of  October,  isTT,  the  appel- 
lee was  hobling,  and  in  the  possession  of, 
the  notes  described  in  the  complaint,  and 
thesnid  Mahala  T.  Shaw  being  then   dan- 


gerously sick  and  ailing,  nnd  In  the  appre- 
hciiHion  of  her  death,  said  to  nnd  charged 
the  appellee  to  do  with  what  was  left  o( 
the  iioleH.  or  the  prnceeds  ihereiif,  as  she 
had  told  him  when  she  delivered  the  uoten 

to  liiin    as   aforesaid,  on    the day  of 

.luli',  ls7,">,  us  thereinbefore  alleged,  unil 
the  appellee  then  and  there  [ironiised  the 
said  .Mahala  that  l:e  would  do  ho;  that 
afterwards,  on  the  ^ith  day  of  dctolier, 
1^77,  the  said  Mahala  died  of  saiil  sicKnesH. 
The  appellee  charged,  that,  by  n  iiHon  of 
the  iireuiises,  he  was  entitled  to  said  nolex 
to  deal  with  them  as  best  lieeuuld,to  pay 
the  decedent's  lawful  debts,  and  alter 
building  the  mnnuiiient,  as  thiTi-inbefore 
described,  to  give  and  deliver  what  might 
be  left  of  such  notes,  or  their  proceeds,  to 
the  said  ('l:irinda.  Tin*  appellee  said  that 
the  note  first  described  in  the  roiuplahit, 
he  did  not  have  or  hold  at  the  commence- 
ment of  this  action,  nor  at  any  time  since; 
and  that  the  estate  of  saiil  .Mahala  T. 
.Shaw,  deceased,  was  solvent.  Wherefore 
the  appellee  said  that  the  appellant  was 
not  entitleil  to  said  nod-s,  and  he  prayed 
judmnent  for  his  costs  herein. 

We  are  of  opinion  that  the  facts  stated 
in  this  paragraph  of  answer  arc  not  sufli- 
cicnt  to  constitute  a  cause  of  defence  to 
the  appellants  action.  It  is  admitted  in 
the  paragraph  tnat  the  notes  in  contro- 
versy were,  on  the day  of  ,luly.  Is7.">. 

the  notes  of  .\l-.hala  T.  Shaw,  at  the  time 
she  delivered  and  entrusted  thi'in  to  the 
appellee;  and  it  is  not  shown  by  any 
avei-ment  therein,  that  she  ever  parted 
with  I.er  title  to  any  ijf  the  notes  durin;; 
her  natural  life.  She  made  him  her  attent. 
with  directions  to  do  the  best  he  could  for 
her  with  the  notes,  and  to  furnish  her  with 
what  means  she  needed  to  live  on  during 
her  life.  Her  declaration  and  direction  to 
the  appellee,  which  must  be  assumed  to 
have  lieen  veriial  or  oral,  because  they 
were  not  alleged  to  have  been*  in  writing, 
went  further  anil  provided  that  alter  her 
death  he  was  to  pay  what  debts  he  knew 
she  owed,  and  erect  n  monument  for  her 
like  the  one  that  had  been  ordered  for  her 
brother  .Solomon,  nnd  what  was  led  was 
Clarinda  V.  I'erguson's,  the  wife  of  the  ap- 
iiellee, and  that  he  should  give  what  was 
left  to  his  wile,  the  said  Cbitinda.  This 
is  the  substance  ot  what  transpired  be- 
tween the  appellee  and  .Mahala  T.  Shaw, 
her  declaration  and    direction,  in    relation 

to  tlie  notes  in  controversy,  on    tin 

day  of  ,lnly,  ls7,'i.  It  is  not  shown  there- 
by" as  it  seeu's  to  us,  that  on  that  day 
there  was  any  gift,  by  or  on  the  part  of 
.Mahala  T.  Shaw,  during  her  life,  of  the 
notes  or  any  part  thereof  to  the  appellee, 
or  his  wife  or  to  aii.v  one  else.     There  was 

no  gift  inter  vivos  of   any  of  th« tes  or 

of  any  |iart  of  the  proceeds  thereof.  The 
dei'laration  and  direetions  of  Mahala  T. 
Shaw  lo  the  appellee  in  .luly,  |s7.'>.as  stat- 
ed in  the  answer,  did  not  constitute  or 
show  a  gift  In  pra-icnti.  or  durinu  her  life, 
of  the  notes  incontroversy;  hut  they  wer<> 
testamentarv  In  their  tern)H,  ami,  without 
the  form  of  solemnity  of  a  will,  attempted 
to  make  a  ;.'i[t  of  whatever  nii^lit  be  left, 
aftercertain  things  had  Iuhmi  done,  to  take 
effect  as  a  gift  only  after  her  death. 

In    Smith    v.    Dorsey.   aS    Ind.   4,'.l.  this 


748 


SMITH  V.  FERGUSON". 


court  said:  "To  constitute  a  valid  sift 
inter  vivos  it  is  essential  that  the  article 
given  should  he  deliveri'd  alisoliitely  and 
unconditionally.  The  Kift  must  takeeffect 
at  once  and  completely,  and  when  it  is 
made  perfect  and  complete  hy  delivery  and 
acceptance,  it  then  becomes  irrevocable 
by  the  donor.  (Jifts  inter  vivos  have  no 
reference  t<)  the  future,  but  ro  into  imme- 
diate and  absolute  effect.  .\  court  of 
equity  will  not  interfere  and  jjive  effect  to 
a  gift  that  is  inchoate  and  incomplete." 
In  Sessions  v.  Moseley,  4  (lush.  87,  the  su- 
preme court  of  Massachusetts  held  that  a 
Kift  inter  vivos  must  be  delivered  in  the 
lifetime  of  the  donor,  because,  if  delivered 
to  a  third  person,  with  instructions  to  de- 
liver to  the  donee,  the  authority  to  deliver 
may  bo  revoked,  and  until  delivery  the 
donor  retains  dominion.  1  Pars.  Con.  284; 
2  Kent  Com.  4:5S;  Bouv.  Law  Diet.,  Til. 
Gifts  inter  vivos;  Bedell  v.  Carll,  33  N.  Y. 
5S1;  Irish  v.  NuttiuK,  47  Barb.  370;  Dex- 
heimer  v.  Gautier,  34  How.  fr.  472. 

It  follows  from  what  we  have  said,  that 
the  averment  of  appellee's  answer  in  refer- 
ence to  what  was  said  and  done  by  and 
between  him  and    Mahala  T.  Shaw  on  the 

day  of  July,  ISiit.  of  and  concerniuf"; 

the  notes  in  controversy,  utterly  fail  to 
show  a  valid  >j;iit  inter  vivos  of  the  notes, 
or  of  any  of  them,  or  of  any  i)nrt  of  the 
proceeds  thereof,  to  the  appellee's  wife  or 
to  any  other  person.  They  fail  to  show 
that  she  parted  or  in  tended  to  part  during? 
her  life  with  her  title  to  or  ownership  of 
any  such  notes.  If  the  title  to  the  notes 
remained  in  her,  if  sUe  continued  to  be  the 
owner  thereof,  and  if  she  mifrht  have  as- 
serted and  maintained  aRainst  the  appel- 
lee or  the  appellee's  wife,  lier  rij^ht  to  the 
possession  thereof  during  her  natural  life, 
it  must  be  that  upon  her  death  her  title 
to  anil  ownership  of  the  notes,  and  her 
riKht  to  the, possession  thereof,  passed  to 
and  vested  in  the  appellant,  as  the  ad- 
ministrfitor  of  her  estate.  We  have  hith- 
erto considered  only  the  averments  of  the 
answer  in  regard  to  what  transijired  be- 
tween the  appellee  and  Mahala  T.Shaw, 
concerning  the  notes  in  controversy  in 
.Inly,  187.").  At  that  time,  it  must  T)e  as- 
sumed, as  nothinu'  was  alleged  to  the  con- 
trary, Mahala  T.  Shaw  was  in  gocid 
health,  and  we  have  reached  the  conclu- 
sion that  the  allea:ations  of  the  answer 
did  not  show  tliat  she  then  made  a  valid 
Kift  inter  vivos  of  the  notes  to  appellee's 
wife  or  to  any  one  else. 

The  question  remaining  for  considera- 
tion is  this:  Do  the  averments  of  the 
answer  show  a  valid  uift  cai.'sa  mortis  of 
the  notes  in  controversy?  A  gift  causa 
mortis  is  tlins  defined :  A  donatio  causa 
raortis  is  a  Rift  of  a  chattel  made  by  a 
person  in  his  last  illness,  or  in  periculo 
mortis,  subject  to  the  implied  conditions 
that  if  the  donor  recovers,  or  if  the  donee 
die  first,  the  Rift  snail  be  void.  2  Schonl. 
Pers.  Prop.  p.  122,  note  1.  In  3  Bedf.  "Wills, 
320,  it  is  aaid,  inter  alia,  that  thoi'e  must 
be  an  actual  delivery  of  the  chattel  to  the 
donee,  so  as  to  transfer  the  possession  to 
him,  in  order  to  constitute  a  Rood  Rift 
inortis  causa.  In  the  third  paraRraph  of 
appellee's  answer  in  the  case  in  hand,  it 
was  uot  alleged  that  on  Octolier  7th,  1876, 


there  was  any  actual  delivery  of  the  notes 
to  the  donee,  or  any  transfer  of  the  pos- 
session thereof.  In  theclose  of  hisanswer, 
the  appellee  alleged  that  cm  the  7th  day 
of  October,  1877,  the  said  Mahala  T.  Shaw 
being  then  dangerously  sick,  and  in  the 
apprehension  of  her  deatli, charged  the  np- 
I)ellee  to  do  with  what  was  left  of  the 
notes,  or  the  proceeds  thereof,  as  she  had 
told  him  when  she  delivered  the  notes  to 
him  in  .luly.  187."i,  vphich  notes  he  was  still 
holdiuR  and  in  the  possession  of,  and  the 
appellee  then  ami  there  promised  tlie  said 
Mahala  that  he  would  do  so.  We  do  not 
think  that  these  allegations  weresufticient 
to  show  a  gift  then  made,  causa  mortis, 
of  what  was  left  of  tlie  notes  or  (>f  the  pro- 
ceeds thereof.  They  show  rather,  as  It 
seems  to  us,  an  unwritten  will,  whorebi' 
she  attempted  to  dispose  of  whatever 
might  be  left  after  her  death  of  the  notes 
or  the  viroceeds  thereof. 

The  cliarRe  of  Mahala  T.  Shaw  to  the 
appellee  on  October  7th,  1877,  in  her  last 
illness  and  in  apprehension  of  her  death, 
did  not  constitute  a  gift, either  intei'  vivos 
or  causa  mortis,  of  the  notes  or  of  what 
might  be  left  of  the  proceeds  thereof,  to 
the  ajjpellee's  wife.  It  was  simply  an  in- 
junction or  direction  that,  after  her  death, 
the  appellee,  as  her  agent  and  the  custo- 
dian of  her  notes,  should  carry  out  her 
wishes  in  relation  thereto  and  dispose  of 
the  same,  as  she  had  directed  in  July,  1875; 
that  is,  he  should  pay  whatever  debts  he 
knew  she  owed  and  erect  a  monument 
for  her  like  the  one  ordered  for  her  brother 
Solomon,  and  then  he  should  give  what- 
ever might  be  left  of  the  notes,  or  of  their 
proceeds,  to  his  wife,  Clarinda  V.  Fergu- 
son. In  2  Schouler  on  Personal  Property, 
P.  82,  it  is  said:  "An  agency  is  revokeil  by 
the  principal's  death:  therefore,  the  agent 
of  one  who  intends  a  gift  inter  vivos  must 
have  performed  what  was  incumbent  up- 
on him  to  make  the  transfer  complete 
during  the  donor's  lifetime:  otherwise  the 
gift  fails,  as  though  the  donor  himself  had 
failed  to  make  a  reasonable  delivery.  Nor 
can  a  gift  inter  vivos  be  sustained  which 
contemplates  a  postponement  of  delivery 
by  the  agent  or  trustee  until  tlie  donor's 
decease:  for  a  gift  of  personalty  made 
j  after  this  fashion  must  stand,  if  at  all.  as 
a  gift  causa  mortis,  or  else  on  the  footing 
of  a  testamentary  disposition,  with  all 
the  formalities  of  a  will."  Sessions  v. 
Moseley,  supra;  Allen  v.  Polereczky,  31 
Me.  338;  Phipps  v.  Hope,  Hi  Ohio  St.  586. 
(.lonstruing  together  all  the  allegations 
of  the  third  paragraph  of  appellee's  an- 
swer, we  are  of  opini(»n  they  wholly  fail 
to  show  that  Mahala  T.  Shaw  parted,  or 
intended  to  part,  during  her  lifetime,  by 
gift  inter  vivos  or  causa  mortis,  with  her 
title  to  or  right  to  the  possession  of  the 
notes  in  controversy  or  the  proceeds 
thereof.  Notwithstanding  all  that  was 
said  or  done  by  or  between  her  and  the 
appellee,  of  and  concerning  such  notes  or 
their  proceeds,  they  remained  her  prop- 
erty and  estate,  we  think,  until  and  at 
the  moment  of  her  death,  and  as  such  the 
title  thereto  and  the  right  to  the  posses- 
sion thereof  passed  to  the  appellant  as 
the  administrator  of  her  estate,  to  be  ad- 
ministered according  to  law.     The  alleged 


SMITH   V.  KEUOUSON. 


749 


solvency  of  her  estate  furniHlics  nu  ronHon 
whatever  for  tlie  uppellet-'n  (li'teiitiiiii  of 
the  noteH  uh  aji'iiiist  her  uclininiMtnitor. 
It  seeniH  to  iin,  therefore,  that  the  eourt 
erred  in  overriilin;;  the  deiinirrer  to  the 
third  piirnKraph  of  tlie   Hppellee'M  uiiHwer. 

This  coiiclUNion  renders  it  unnecessar.v 
for  ua  to  consider  or  decide  any  of  the 
questions  arisin^i  under  the  alleged  error 
of  the  court  in  overruling  the  appellant's 
motion  for  a  new  trial.  We  may  prop- 
erly remark,  however,  that  the  evidence 
in  the  record  does  not.  in  our  opinion, 
sustain  the  averments  and  theory  of  the 
third  paraKriiph  of  appellee's  answer. 
The  appellant  gave  in  evidence  a  written 
receipt,  executed  hy  the  appellee  to  Ma- 
hala  T.  Shaw,  in  suhstance  as  follows: 

"Battle  (Ground,  Ind.,  March  L'l'd.  ISTC. 
Received  of  Mahala  T.SIuiw  the  followint; 
notes,  to  be  held  in  trust  for  her:"  (  Here 
follows  a  description  of  the  notes  in  con- 
troversy In  this  action.)  (Sijined)  "  W.  R. 
Ferjiuson. " 

It  will  be  observed  that  this  receit)t, 
from  its  date,  was  executed  by  ajipellee  to 
Mahala  T.  Shnw,  about  eif;ht  months 
after  her  declaration  and  direction  to  him, 
in    July,    1S75,   upon    which   the  appellee 


I  founded  the  third  parat;raphof  his  answer. 

1  If,  by  this  rerelpt,  the-  appellee  became  the 
trustee  of    Mahala    T.  Shaw,  and    so    held 

[  the  notes,  by  the  terms  of  the  rec<'ipt  he 
held  them  "in  trust  for  her,"  as  tlie  solo 
cestui  que  trust,  from  and  after  the  date 
thereof,  and    any  prior   parol    trust.  In  re- 

I  latiiin  to  the  notes,  was  thereliy  abro- 
trnted.  It  was  shown  by  the  evidence  that 
this    receipt    was   in    the    pocket-buok   of 

'  Mahala   T.  Shaw,  which  pocket-liook  waa 

I  found  under  her  pillow  immediately  after 
ber  ileath.     It  may  lie  assumed,  therefore. 

I  as  it  seems  to  us,  that  the  notes  were  held 
by  the  appellee  under  such  receipt,  at  the 
time  of  the  death  of  Mahala  T.  .Shaw,  and 
the  consequent  determination  of  the  trust 
thereby  created.  This  beini;  sr),  the  appel- 
lant as  her  administrator  was  entitled  to 
the  notes  and  the  possession  thereof,  as 
aKxiust  the  appellee. 

The  Judgment  is  reversed  with  costs, 
and  the  cause  is  remanded  with  instruc- 
tions to  sustain  the  deniurrer  to  the  third 
paragraph  of  appellee's  answer,  and  for 
further  proceedings  not  inconsistent  wltb 
this  opinion. 

Petition  for  rebcarin(r  overruled. 


SMITH   0.  LYXES. 


751 


SMITH  V.  LYNES  et  al. 

(5  N.  Y.  41.) 

Court  of  Appeals  of  New  York.    July,  1851. 

ThiH  was  an  action  of  replevin  to  recov- 
er certain  pieces  of  caipetinc  claimed  by 
the  iilaintiff  as  Mis  property.  Tlie  follow- 
ing: facts  were  proved  on  the  trial: 

The  defendant  I^ynes  had  coiitructed  to 
purchase  all  the  car|)et8  uianufactiin-d  by 
the  plaintiff  with  a  certain  number  of 
looms  during;  a  specified  time,  and  to  pay 
for  the  same,  except  $2,000  worth,  with 
his  notes  indorsed  by  Thompson  &  Co. 

Tlie  carpets  were  manufactured  and  de- 
livered accordingly,  and  notes  tor  a  part 
were  duly  given.  On  the  7th  of  March, 
iNJs,  Lynes'  clerk  nave  the  plaintiff  a  re- 
ifipt  for  nine  pieces  of  carpeting,  upon 
which  a  memoranduni  was  indorsed  by 
Lynes  as  follows:  "  .\le.ssrs.  Thorn pso.i  & 
Co.  are  up  to  Thompson ville,  but  e.xpect 
to  be  down  on  Wednesday  or  Thursday,; 
and  1  will  have  them  ready.  B.  L." 
Meaning,  as  he  testified,  that  ha  would 
have  the  notes  ready. 

By  an  agreement  between  Tvynea  and 
Thompson  &  Co.,  the  latter  agreed  to  take 
the  carpets  purchased  frotn  the  plaintiff, 
and  a  part  of  those  delivered  to  Lynos 
were  by  him  deliver.^d  to  Thompson  &  (>>. 
On  the  15th  of  March,  1S4S,  the  plaintiff 
called  upon  Lynes  and  demiinded  of  him 
the  goods,  or  payment  of  his  notes,  which 
was  refused.  He  also  demanded  of 
Thompson  &  Co.  the  goods  in  their  pos- 
session received  from  Lynes,  which  was  al- 
so refused.  Thompson  &  Co.  admitted 
tliat  $.")00  or  $000  worth  of  the  goods  had 
not  been  iiaiil  for.  A  balance  of  over  $2,- 
800  was  then  due  the  plaintiff. 

On  motion  of  the  defendant  a  nonsuit 
was  granted  on  tliefollowinggrounds:  1. 
That  the  delivery  to  Lynes  was  absolute 
and  vested  the  litle  in  him.  2.  That  there 
had  been  no  proper  demand  or  refusal  of 
the  notes.  3.  That  the  sale  to  Thompson 
&  Co.  vested  the  absolute  title  in  them  of 
such  goods  as  were  sold  by  L.-nes  to 
them. 

An  application  to  set  aside  the  nonsuit 
having  been  denied  the  plaintiff  brought 
this  appeal. 

C.  \V.  Sundford,  for  appellant.  B.  W. 
Bonney,  for  respondents. 

PAIGE,  J.  Where  gootis  are  sold  on 
condition  of  being  paid  for  on  delivery  in 
cash  or  commercial  paper,  or  on  condition 
of  receiving  on  delivery  security  for  pay- 
ment, on  absolute  and  unconditional  de- 
livery of  tlie  goods  by  the  ver.dor  without 
exacting  at  the  time  of  delivery  a  perform- 
ance of  the  condition,  or  nttncliing  any 
otiier  condition  to  the  delivery,  is  a  waiv- 
er of  the  condition  of  the  sale,  and  a  com- 
plete title  passes  to  the  purchaser,  if  there 
is  uo  fraudulent  contrivance  <in  the  part 
of  the  latter  to  obtain  possos.-iioii.  Where 
there  is  a  condition  preceilent  attached  to 
a  contract  of  sale  and  delivery,  the  prop- 
erty does  not  vest  In  the  venilee  on  deliv- 
ery, until  he  performs  thecuiulition.  or  the 
seller  waives  it.  An  absolute  ami  uncon- 
ditional delivery  is  rcKanled  as  a  waiver 
of  the  condition.     By  an  absolute  delivery 


without  exactini;  the  performance  of  tbe 
condition,  the  vendor  Is  preioiraed  to 
have  abandoned  the  security  he  had  pro- 
vldeij  for  the  payment  of  the  purchase- 
money,  and  to  have  elected  to  trust  to 
the  pernonal  security  of  the  vendee.  (2 
Kent's  Com. 4!l(>-'.i";  Chapman  v.  Lathrop, 
•J  Cow.  Uo. and  Il.'i,  notea;  Lupin  v.  .Marie, 
0  Wenrl.  so.  iti  error,  .Marcy,  .1.;  Kurniss  v. 
Hone,  S  Wend.  247,  in  error;  Carleton  v. 
.Sumner,  4  I'ick.  rdO;  Hussey  v.  Thornton, 
4  .Mass.  40.J:  Smith  v.  Denide,  C  Pick.  2fJ2; 
People  V.  Hnynes,  14  Wend.  .'i(>2;  in  error, 
per  Chancellor,  ."jfiC,  per  Tracy.  Senator; 
.Shindler  V.  Houston,  1  Denio,  ."il,  .lewett, 
.1.;  Buck  v.(irin)shaw.l  Kclw.Ch.  144.)  The 
vendor,  to  avoid  a  waiver  of  the  condi- 
tion of  the  sale,  must  cithern-fuse  todeliv- 
er  thegoods  without  a  ijcrformance  o(  the 
condition,  or  he  must  make  the  delivery 
at  the  time  (|ualihed  and  conilitiiuiul. 
(Lupin  V.  Marie,  0  Wend.  Si.  in  error,  Mar- 
cy, .1.;  llussi'y  V.  Thornton,  4  .Mjiss.  4ito; 
14  Wend.  ."lOO,  Tracy.  Senator.  I  .lustice 
Nelson  in  Furniss  v.  Hone  (S  Wend.  2.'ii;), 
says,  whether  the  delivery  isabsiduteor 
conditional  must  depend  upon  the  Intent 
of  the  parties  at  the  time  thegoods  are  i|e- 
livered.  .\nd  in  Smltli  v.  Dennie  (<!  Pick. 
20(1),  Parker,  Ch.  .!.,  held,  that  this  was 
a  question  of  fact  for  the  jury.  He  savH. 
"We  do  not  think  after  a  conditional 
bargain  has  been  maile  and  a  delivery  im- 
meiliately  takesplace upon  the  expectation 
that  tlie"  contemplateil  security  shall  be 
produced,  without  an  express  din-laration 
that  the  delivery  is  also  conditional,  that 
the  sale,  ipso  facto,  lieconies  absolute,  be- 
cause there  is  an  implied  umlerstandinK 
that  the  vendee, "' etc.,  will  furnish  the  se- 
curity," eti-.,  "as  soon  as  he  shall  have  an 
opportunity  to  procuie  it."  In  that  case 
the  sale  was  on  the  express conditbin  that 
the  vendee  should  give  an  inilorsed  note 
for  the  price,  and  the  goods  were  delivered 
by  the  clerk  of  the  vendor  to  the  vendee 
without  any  express  reference  to  the  con- 
dition, anil  Vemnined  in  the  posseswion  of 
the  vendee  for  eight  ilays,  during  «  liich 
time  no  claim  was  made  by  the  vendorfor 
the  notes  or  the  goods;  and  it  was  held 
that  there  was  a  waiver  of  the  condlilon, 
and  a  verdict  to  the  contrary  was  set 
aside  by  the  court  as  against  evidence. 
I'arker,"  Ch.  J.,  in  giving  the  opinion  of 
the  court,  says,  "There  is  nothing  in  the 
case  from  which  an  intention  to  hold  on 
upon  the  condition  can  be  inferred.no  dec- 
laration at  the  time,  which  thouuli  not 
necessary  is  important,  and  no  call  for  se- 
curitv  lintil  it  was  forgotten  or  aban- 
doned, and  perhaps  never  w.iuld  have 
been  recurred  to  if  the  goods  hail  not  been 
attached."  .According  to  this  decision  as 
well  as  the  intimation  of  .Tnstice  .Nelson  In 
Kurniss  v.  Hone,  and  the  language  of 
Chancellor  Kent  lo  his  Commentaries  (2 
Kent,  4'.Mi),  it  does  not  siH'm  to  be  neees- 
sarv  to  a  i|ualilieil  or  conditional  delivery, 
that  the  nualilicatlon  or  condition  intend- 
ed to  be  annexed  to  the  delivery,  should 
at  the  time  bediidared  by  the  vendor  in 
express  terms.  The  delivery  will  be  con- 
ditional, if  the  intent  of  the  |inrties  that  it 
should  be  so  can  he  infern'd  from  their 
acts  and  the  circuiustances  of  the  case. 
The  learned  Judge   who   tried    this  cause 


752  SMITH  V.  LYNES. 


was  evidently  mistaken  in  the  proposition 
advnneed  bybini.  that  to  moke  u  delivery 
conditional'it  must  be  declared  to  be  so  in 


tionof  theKOodsHold  to  the  purchaser,  and 
asked  tlie  latter  for  his  note  for  the  quan- 
tity   delivered,  and    the   purchaser  rei)lied 


express  terms.  Where  the  delivery  is  ah-  that  he  would  give  his  note  for  the  whole 
solute  without  any  contemporaneous  dee- !  when  the  remainder  was  delivered,  and 
laration  (lualifviiip;  it,  the  onus  of  the:  that  the  parcel  then  delivered  could  re- 
proof of  the  condition  rests  upon  the  ven- ;  main  till  that  time.  The  court  of  er- 
dor.  If  no  such  proof  is  offered,  the  deliv- 1  rors  held  that  the  delivery  of  the  parcel 
ery  will  be  deemed  absolute,  and  the  title  j  was  conditional.  Senator  Edwards,  with 
to  the  Roods  will  pass  to  the  vendee.  (S  i  whom  the  majority  of  the  co\irt  con- 
Wend.  2.'>(),  Nelson,  J. ;  Buck  V.  Urimshaw,  curred,  put  the  question  of  waiver  of  the 
1  Ed w.  Ch.  140.)  Every  absolute  delivery  I  condition  of  the  sale  on  the  intention  of 
of  soods  sold  on  condition  is  presumptive  I  the  parties  at  the  time  of  the  delivery; 
evidence  of  a  waiver  of  the  condition  by  j  and  trora  the  facts  of  that  case,  he  came 
the  vendor,  and  of  an  intention  on  his  to  the  conclusion  that  neither  party  in- 
part  to  rely  wholly  on  the  personal  seen-  tended  that  the  condition  of  the  sale 
rity  of  the  vendee  for  the  paynient  of  the  should  be  waived.  Senator  Wager  took 
price  of  the  goods.  The  cases  cited  by  a  similar  view  of  the  question.  If  the 
the  counsel  of  the  appellant  do  not  con-  memorandum  indorsed  on  the  receipt  of 
flict  with  the  forej^oin;^  propositions,  in  ,  the  7th  of  March  tends  to  show  a  s.ate  of 
the  cases  of  Russell  v.  Minor  i'2'2  Wend.  '  facts  which  will  bring  this  case  within 
659),  and  of  Keeler  v.  Field  (1  Paige,  312),  j  the  princii)leof  the  case  of  Itussell  v.  Minor 
express  conditions  were  annexed  to  the  de- 1  (which  1  think  quite  clear),  the  nonsuit  of 
livery  of  the  goods.  In  Palmer  v.  Hand  the  plaintiff  was  erroneous  so  far  as  re- 
(13  Johns.  4o-l),  the  delivery  of  the  timber  ;  lates  to  the  goods  delirered  on  the  7th  of 
was  not  comi)!ete  before  payment  was  '  March  ;  and  the  judge  who  tried  the  cause 
demanded.  In  Haggerty  v.  Palmer  (0  !  erred  in  not  submitting  it  to  the  jury  to 
Johns.  Ch.  437),  the  delivery  was  held  to  determine  whether  the  goods  delivered  on 
be  conditional  in  accordance  with  a  usage  that  day  were  delivered  absolutely  orcon- 
of  the  city  of  New  York,  known  to  the  ditionally;  that  is,  whether  the  plaintiff 
purchaser,  and  the  validit.v  of  which  was  intended  to  deliver  them  absolutely  and 
not  called  in  question  by  the  parties  to  the  :  thereby  to  waive  the  condition  on  which 
BUit.  the  sale  was  made.     (6  Pick.  266-7.) 

In  the  case  now  under  review,  the  goods  There  is  no  evidence  in  the  case  to  show 
were  sold  on  condition  of  being  paid  for  that  the  goods  found  in  the  possession  of 
(excepting  f 2,000  worth),  on  delivery,  by  ;  Thompson  &  Co.,  and  replevied  by  the 
indorsed  notes.  The  goods  were  delivered  [  sheriff,  were  a  part  of  the  goods  delivered 
in  parcels  at  the  purchaser's  store  on  on  the  7th  of  March.  These  goods  they 
several  days  in  Januar.v,  February  and  purchased  from  B.  Lynes,  without  any 
March.  There  is  no  evidence  to  show  \  notice,  for  aught  the  case  shows,  of  the 
that  the  delivery  of  any  of  these  parcels  :  nature  of  the  contract  of  sale  between 
was  in  express  terms  made  subject  to  any  him  and  the  plaintiff.  As  to  all  the 
condition.  'I'he  delivery  being  shown,  it  goods,  therefore,  purchased  by  Thompson 
belonged  to  the  plaintiff  to  prove  that  it  &  Co.  from  B.  Lynes,  and  paid  for  by 
was  conditional.  No  questirin  can  arise  them,  thsy  are  entitled  to  the  protection 
as  to  any  of  the  parcels  except  the  one  de-  of  bona  fide  purchasers  without  notice, 
livered  on  the  7th  of  March,  i-ieveral  par-  even  if  the  delivery  to  Lynes  was  condi- 
cels  had  been  delivered  previous  to  that  ;  tinnal.  (6  Johns.  Ch.  437;  1  Paige,  312,  1 
day  without  exacting  the  delivery  of  the  Ed  w.Ch.  146. )  As  it  does  not  appear  that 
indorsed  notes  stipulated  in  the  contract,  any  part  of  the  gooils  taken  by  the  sheriff 
As  to  these  parcels  the  delivery  must  be  ^  from  the  posses.siou  of  Thompson  &  Co. 
deemed  to  be  absolute,  and  the  condition  '  were  a  part  of  the  goods  delivered  on  the 
regarded  as  waived.  Tlie  memorandum  7th  of  March,  although  a  part  of  these 
indorsed  on  the  receiptgivenfor  the  goods  goods  should  not  have  been  paid  for  bv 
delivered  on  the  7th  of  March,  in  which  i  Thompson  cSf  Co.  to  Lynes,  they  can,  never- 
Lynes  declares  in  substance,  that  on  [  theless,  justify  under  Lynes,  whose  title 
AVednesday  or  Tliur.-fday  he  will  "have  i  to  all  the  parcels  delivered  previous  to  the 
thera  ready"  (which  Lynes  swears  re- 1  7th  March  is  undoubtedly  perfect,  in  conse- 
ferred  to  the  note.s),  tends  to  show  a  !  quence  of  the  absolute  and  unconditional 
promise  on  the  part  of  Lynes  to  procure  delivery  to  him  by  the  plaintiff  of  all  such 
the  mdorsed  notes  and  deliver  them  to  the  parcels.  The  nonsuit  was,  therefore,  be- 
plaintiff,  and  that  the  goods  delivered  on  '  yond  all  question  correct  as  to  the  defend- 
the  7th  of  .March  were  delivered  on  the  :  ants  Thompson,  Schoonmaker  and  Dean, 
condition  of  the  subsequent  delivery  by  I  the  members  of  the  firm  of  Thompson  & 
Lynes  to  the  plaintiff  of  such  notes.  IftheCo.  But,  for  the  reasons  before  assigned, 
goods  were  delivered  <m  the  faith  of  that  ;  it  was  erroneous  as  to  Benjamin  Lvnes. 
promise,  and  in  expectation  that  it  would  1  It  must,  therefore,  be  set  aside,  and  the 
be  performed,  this  ca.se  resembles  that  of !  judgment  (jf  the  superior  court  must  be 
Russell  v.  jMinor  (22  Wend.  062).  [  reversed. 

In   that   case   the   seller  delivered  a  por- I     Ordered  accordingly. 


SMITH  0.  SMITH. 


755 


SMITH  T.  SMITH. 

(2  StraDge,  9."i5.) 

Court  of  King's  Bench.    At  Nisi  Prius.     Michael- 
mas Term,  7  Geo.  2. 

The  pluintiff'H  lntPHtatel()(lf;i;(l  at  thede- 
fendant'H  houBc,  uutl  had  furiiiturft  and 
plate  there,  and  was  proved  to  have  snid, 
that  whatever  he  broiiRht  ii-to  thoKc 
lodKinjrs  he  never  intended  to  take  away, 
but  y;nvc  directly  to  the  defendiiiit's  wife. 
And  now  in  trover  for  the  Koods  which 
were  there  at  the  intestate's  death,  it  was 


ruled,  that  a  parol  gift,  without  some  act 
of  delivery,  would  not  alter  the  property, 
and  that  nuch  an  act  waH  neecHsary  to 
establihth  a  donatio  cauHa  niortiH.  I'poii 
tills  opinion  It  came  to  the  question, 
whether  there  was  any  delivery.  And  to 
prove  one,  the  defendant  nhewed,  that 
the  intestate,  when  he  went  out  of  town, 
used  to  leave  the  key  of  his  rooms  with  the 
defendant:  and  that  was  insisted  to  be 
Htich  a  mixed  possession,  that  the  law  will 
a<ljud(j;e  the  possession  to  be  in  him  who 
has  the  riKht.  And  the  chief  justice  ruled 
it  so,  aad  the  Jury  found  for  the  defcadaDt. 


SPOONER  0.  CUMMINGS. 


757 


SPOONER  V.  CUMMINGS. 

(23  N.  E.  Rep.  839,  151  Mass.  313.) 

Huprume  Judicial  Court  of  Massachusetts. 
Middlesex.    March  11,  IbflO. 

Exceptions  from  STiporior  court,  Middle- 
eex  county;  P.  E.moky  Aldrich,  Juiljjc. 

Keplevinof  a  horse.  AnKwer.geneml  de- 
nial. Plaintiff  proved  ownership  prior  to 
May  2(),  ISSS,  and  identified  the  lioi-so  as 
the  one  described  a8"oue  black  horsecallod 
'Jenks  horse,' "  delivered  to  I).  F.  Pojie, 
l)Ut  never  paid  for,  under  the  followinncon- 
tract:  "Hudson,  May  -'(),  Isss.  deceived 
of  L.  R.  Spuoner,  this  day,  one  gray  mare, 
called  'Uorton  mare;'  one  pray  horse, 
called  '.leaks horse;'  oneblaclt  liorse.called 
'Jenks  horse;'  one  white-nose  liorse, called 
'Boston  horse;'  for  which  I  promise  to 
pay  said  L.  R.  Spooner  or  order  live  hun- 
dred seventy-live  dollars,  one  month  from 
date,  at  City  National  P>ank,  with  interest 
at  7  per  cent.  Said  horses  and  mare  to  be 
and  remain  the  entire  and  absolute  prop- 
erty of  said  Spooner  until  paid  iu  full  l)y 
me.  And  I  hereby  agree  to  l<eep  said  horses 
and  mare  in  good  order  and  condition,  as 
the  same  now  are.  And  should  said  horses 
and  mare  die  before  said  sum  is  fully  i)aid, 
I  herel)y  agree  toi)ay  all  sums  due  thereon. 
And  should  said  horses  or  mare  be  returned 
to  or  taken  back  by  said  Spooner,  I  agree 
that  all  payments  made  thereon  may  bo 
retained  by  said  Spooner  for  the  use  of  said 
horses  and'mare.  DamklF.  Popk.  "  Plain- 
tiff kept  a  livery  and  sale  stable  in  Worces- 
ter, and  had  sold  horses  to  Pope  largely 
within  the  past  three  or  tour  years.  I'lain- 
tiff  asked  the  court  to  rule  that  under  the 
answer  defendant  could  only  show  that 
the  contract  relied  on  was  not  made,  or  j 
that  the  horse  had  been  paid  for;  but  the 
court  ruled  that  defendant  might  show,  I 
also,  that  plaintiff  gave  Pope  authority,  j 
express  or  implied,  by  the  course  of  deal- 
ing, to  sell  the  horse  before  he  paid  for  it. 
Against  his  objection,  plaintiff  was  re- 
quired to  answer,  in  cross-examination, 
the  following  question:  "What  was  the  i 
course  of  dealing  between  you  and  I'ope 
in  the  year  Isss,  about  May  :.'iith,  ami  ex- 
tending back  alittle  and  forward  a  little?" 
and  the  following  evidence  from  plaintiff, 
in  cross-examination,  was  admitted:  "1 
sold  Pope  fifty  horses, perhaps,  in  the  year 
ISSS.  I  supposed  that  Pope  wouldn't  use 
fifty  horses  in  liis  livery  stable  unless  he 
sold  some.  He  usually  kept  from  twenty- 
five  to  thirty.  Naturally  he  would  want  i 
to  sell  some  that  he  had,  or  some  other 
ones,  to  make  room.  I  didn't  expect  he 
would  sell  any  of  mine  until  he  paid  for 
them.  I  would  have  made  objections  to 
his  selling  one  of  my  horses,  even  if  he  sent 
me  the  money  the  next  day. "  Pope  was 
permitted  to  testify  that  "the  course  of  , 
dealing  between  plaintiff  and  me  was  Pd  I 
buy  horses  and  give  these  contracts,  and  [ 
Pd"  send  him  money,  and  he'd  apply  it 
where  he  saw  fit,  on  any  of  thesecontracts.  I 


He  used  to  urge  mc  to  sell,  that  he  hart  a 
barn  full.  Sometimes  Pdti-ll  hltn  I  wanted 
a  horse  for  a  particular  person.  I  told 
him  this  time  I  wanted  a  horse  fora  teairi- 
ster."  J.  A.  Trull  was  permitted  to  tc»tlfy 
that  about  t  he  middle  of  June,  ls«>i,  Spoon 
told  him  to  tell  Pope  that  he  had  a  ear- 
load  coming,  and  to  sell  as  many  as  he 
could.  Hefendant  bought  this  horxe  of 
Pope,  June  2, 18S8,  and  paid  cash  at  tho 
time. 

C.  \V.  Wood  and  F.  A.  GnukiU.  for  plain- 
tiff.   J.  W.  MeDvnuld,  lor  defendant. 

K.Nowi.To.N,  J.  Under  the  answer  of  the 
defendant,  any  evidence  was  competent 
which  tended  to  contradict  the  contention 
of  the  plaintiff  tliat  the  title  to  the  horse 
and  the  right  of  possession  were  in  him. 
Verry  v.  Small,  16  <iray,  I"-':.';  Whltcher  v. 
Shattiick.  ;f  Allen.  Itl'J.  The  defend.iiit  was 
not  a  party  to  the  written  contract  be- 
tween the  plaintiff  and  Pope,  but  clalme<I 
outside  of  it,  and  in  support  of  his  own 
title  he  might  show  by  parol  what  was 
the  real  arrangemrnt  betwi'en  tlir-in,  even 
if  itdiffere<l  from  that  contained  in  the  writ- 
ing. Kellogg  V.  Tomiisiin.  141'  .Mass.  70, 
(i  N.  E.  Rep.  SCO.  If  the  plaintiff  expressly 
or  impliedly  authorized  the  sale  by  Pope 
to  him,  he,  liaving  bought  in  good  faith 
from  the  apparent  owner, acfjuired  a  good 
title.  It  is  immaterial  whether  his  right 
dependsupon  an  actual  authority  to  make 
the  sale,  or  upon  facts  which  estop  the 
plaintiff  from  denying  the  validity  of  the 
sale.  Rurbank  v.  Crooker,  7  <iray,  159; 
Haskins v. Warren,  11.')  Afass. .514. 5US ;  "Tracy 
V.  Lincoln,  145  Mass.  357,  14  N.  E.  Rep.  ll".'; 
Bank  v,  Bufiinton,  97  Mass.  4!»S;  Fowler 
V.  Parsons,  143  Mass.  401,  9  N,  E,  Rep.  799. 

The  testimony  as  to  the  course  of  dealing 
between  the  plaintiff  and  Pope,  involving 
a  long  series  of  transactions,  all  of  the 
same  kind,  and  conducted  generally  in  the 
same  way,  was  competent,  a.s  tending  to 
show  an  expectation  and  understanding 
on  the  part  of  both  that  Pope  would  sell 
the  horses  which  he  bought  of  the  plaintiff 
as  he  had  opportunity,  and  that  he  was 
impliedly  authorized  to  sell  this  horse  to 
the  defendant.  Hubbell  v.  Flint.  13  <irny, 
277;  Bank  v.(ioodsell,107MaB8. 149;  Lynde 
V.  McCiregor,  13  Allen,  172;  Bragg  v.  Rail- 
road Corp.,  9  Allen,  54.  The  testimony  of 
Trull,  as  to  the  message  sent  to  Pope  by 
the  plaintiff  about  the  middle  of  June,  was 
of  a  conversation  so  soon  after  the  sale  of 
June  I'd  to  the  defendant  that  the  judge 
might  well  admit  it  in  his  disi-retion.  It 
related  to  the  general  course  of  dealing, 
of  which  the  sale  to  Pope  of  the  hors"-  n.'- 
plevied  was  a  part.  The  jury  were  rightly 
permitted  to  lind  that  theplaintiff  Impli.Hlly 
authorized  the  sale  l)y  i'ope  to  the  defend- 
ant, and  that  he  was  estoppe*!  to  deny  tlie 
validity  of  the  title  which  the  defendant 
acquired,  relying  on  I'ope's  possession  and 
apparent  ownership.  Exceptions  over- 
ruled. 


SPOON  ER  V.  HOLMES. 


759 


SPOONER  V.  HOLMES. 

(102  Mass.  503.) 

Supreme  Judicial  Court  of  Ma.ssachusetts.    Plym- 
outh.    Oct.  Term,  1869. 

Tort  to  rerover  the  value  of  certain  in- 
terest cou|)oiiH  of  United  .StnteH  hunilH, 
payable  to  lieanM-  in  Kiild,  iind  ullf>;ed  to 
have  heen  converted  liy  the  defendant  to 
hiH  own  use.  The  hill  of  exceptions  states 
the  case  as  follows:  "The  plaintiff's  evi- 
dence tendeil  to  show  that  the  coupons  in  ' 
question  were  stolen  from  the  plaintiff  by  i 
a  servant  in  his  einploi',  and  by  tliat  serv- 
ant Kiven  to  her  sister,  who  was  a  servant 
in  the  family  af  the  cashier  of  one  of  the 
national  banks  in  PljMiiouth;  and  that 
the  defendant  purchased  the  con|ions  of 
the  servant  in  tlie  cashier's  family,  and 
under  circumstances  whicli  would  nat- 
urally e.xcitt'  suspicion  that  they  were 
stolen.  The  defendant'.sevi<leuce  tended  to 
show  that  they  were  handed  to  him  merely 
to  lift  them  changed,  that  there  was  no 
suspicious  or  unusual  circumstances  at- 
tenillntr  the  transaction,  and  that  he  was 
simply  the  agent  of  the  servant.  Amoni; 
the  evidence  introduce<l  by  the  defendant 
was  a  letter  received  by  him  from  Nova 
Scotia,  i)urportlnK  to  be  from  the  said  ser- 
vant of  the  cashier,  she  havinj;,  before 
that  time,  fione  thitlier.  In  said  letter 
were  inclosed  two  of  the  coupons  in  ques- 
tion, which  were  sold  by  the  defendant. 
The  plaintiff  objected  to  the  introduction 
of  this  letter  in  evidence  without  proof  of 
tlie  handwriting;  but  the  jnd};.?  ruled  it 
to  be  admissible  without  such  prcjof,  for 
the  pur[)ose  of  showing  the  manner  an<l 
circumstances  of  the  defendanfs  receiving 
tlie  two  coupons  which  it  contained. 
Some  of  the  coupons  were  sold  liy  the  de- 
fendant to  tlie  I'lymouth  National  Hank, 
some  were  sold  to  brokers  in  Itoston,  and 
one  was  sold  to  a  personfrom  Lynn,  witli 
whom  the  defendant  tra<led,  and  who 
happened  to  be  at  his  shop  in  I'lynioutli, 
at  the  same  price  which  he  had  received 
for  others  from  the  bank.  Th,-  evidence 
tended  to  show  that  the  defi-ndant  re- 
ceived pay  for  his  ccjupon  in  j;oods  from 
the  Lynn  man,  anil  paid  the  servant  the 
price  thereof  in  money.  The  judge  in- 
Htructed  the  jury,  among  other  things,  as 
to  the  rules  of  111  w  applicable  in  cases  of 
good.s  an<l  merchaiKlise  stolen  or  other- 
wise lost,  and  coming  into  tlie  possession 
of  persons  other  than  the  true  owners,  in 
terms  not  objci'led  to;  but  then  ruled  and 
instructed  the  jury  tint  the  same  rules 
did  not  apply  to  money  or  the  currency 
of  the  country,  and  did  not  apply  to  such 
coniions  as  those  in  (lucslidii.  which  to 
some  extent  formed  a  part  of  the  cur- 
rency; that  the  jury  were  to  consider 
whe'tlipr  the  defendant  purchased  the  cou- 
pons in  question  or  wlietlier  he  merely  rv- 
ceived  them  to  sell  for  the  servant,  and 
acted  in  regani  to  tliiiii  as  her  agent; 
th.it.  if  they  found  the  former  to  be  true, 
and  that  tlie  defendant  purchased  thi'ni 
under  such  circumstances  as  would  have 
put  a  person  t)f  orilinaiy  pruuence  on  his 
guard,  and  woultl  have  led  su'h  .-i  person 
to  refuse  them,  they  sliouM  Iind  for  the 
plaintiff;    that,  if  they  found    that  the  de- 


fendant was  acting  an  agent  merely,  to 
get  the  coupons  turned  into  money  f<ir  the 
servant,  then  the  pl/ilntiff  could  not  re- 
cover, unless  lie  satisfied  the  Jury  that  the 
defendant  either  knew  that  the  servant 
had  come  dishonestly  by  tliem,  or  niiiiht 
so  have  known  except  for  Ids  grosH  negli- 
gence; and  that  gross  negligence  was  tlie 
carelessness  of  a  very  cari'lo'S  periiou. 
The  plaintiff  requested  the  judge  to  In- 
struct tlie  jury  that  paying  out  the  ct)n- 
pons  in  his  business,  or  exchanging  tln-m 
for  goods,  was  inconHlstent  with  agency, 
unless  the  articles  receiv<'d  In  exchange 
were  delivered  to  the  prlm-lpal;  and  that, 
to  entitle  the  defendant  to  the  benefit  of 
the  defence  of  agency,  if  there  were  any 
sus|)icious  facts  or  cIrcunislanceH  which 
came  to  his  knowledge,  he  mti.-^t  have  dis- 
clo.siii  them  or  di.sclosed  his  agency.  The 
juilge  decliui'd  to  give  either  of  these  in- 
structions. The  verdict  was  for  the  de- 
fendant, and  the  jury,  in  ri'ply  to  a  qiies- 
tion  of  the  juilge,  said  they  found  the  de- 
fendant to  have  been  acting  uh  agent." 

P.  KimmonH,  for  plaintiff.    L.  W.  Howe«, 
tor  defendant. 

GHAY,  J.    This  is  an  action   of  tort.  In 
the  nature  of   trover,  for  certniu  coupons 
of  United  States  bonds,  alleged  in  the  dec- 
laration to  be   the  pnii'iTty  of   tl;e  plain- 
tiff and    to  liave  been  converted  by  tlie  de- 
I  fendunt  to  his   own    use.     The  undisputed 
1  evidence  at    the    trial    sliowed    that   the 
'  bonds  liad  bel'Miged    to    the   plaintiff,  and 
!  had    been    stolen    from  him,  and  delivered 
I  by     one     who     received    them     from     the 
I  thief  to  The   defendant,   and    by    him   scdd 
and  turned  into  money,  which  heisadmit- 
I  ted    to    have   paid    over   to  his  principal, 
j  Hut  the  jury  have  found  that  in    so   doing 
the  defendant  acted    only    as   agent  of  the 
person  from  whom  he  received   them,   and 
did   not   know,   and   was    not    guilty    of 
gross   negligence    in    not    knowing,    that 
tliat     person     had    come    dishonestly   by 
them.     It  does  not  appear  tliat  the  plain- 
tiff ever  demanded    of   the   defendant    per- 
sonally either   the  coupons   or   their  pro- 
ceeils,or    that    the    delend.int    personally 
derived   ony    benetil   from    his   nets.     The 
principal   question  in  the  case  is,  whether, 
under  tliese  circumstances,    he  is   liable  Id 
this  action.     This  is   nn   iujportant   ques- 
tion, and  has  received  great  coiisiderotlou 
from  the  court. 

1  An  action  of  tort  for  the  conversion  of 
I  personal  property,  under  our  iiM^sent  sys- 
I  tem  of  pleading,  requires  such  evidence  to 
support  it  as  w<iuld  have  proved  a  con- 
version in  an  action  of  trover  at  common 
law:  and  cannot  lie  maintained  without 
proof  that  the  defendant  either  ilid  some 
positive  wrongful  act  witli  the  Intention 
to  appropriate  the  property  to  himself  or 
to  deprive  the  rightdil  owin-r  of  It,  or  ilo- 
stroved  the  property.  l"oiildes  v.  Wll- 
lougliliv,  ^  M.vV:\V..".40.  Ileald  V.  Carey, 
11  ('.  H.  !>7T.  (ieii.Sts.  c.  I •-'•.•.  S  SI.  Hob- 
inson  v.  .\uston,  L'  tJrny.  ."<>4.  Loring  v, 
.\Iiilcahv.  :!  Allen.  .'>?.'>.  Parker  v.  Lom- 
bard. 101)  Mass.  4ii.">.  In  the  last  case.  .Mr. 
.lustice  Hoar  says  that  If  a  bailee,  being 
intrusted  witli  the  possession  merely, 
translers   the   possession  according  to  lh« 


760 


SPOONER  V.  HOLMES. 


(lireotioua  of  the  person  from  he  received 
it,  \vith(jut  notice  of  any  better  title,  and 
witliout  nnilertalvins  to  convey  any  title, 
this  does  not  appear  to  have  been  held 
any  evidence  of  a  conversion;  and  cites 
«tricl<lund  v.  Barrett,  2(1  Pick.  415,  and 
Leonard  v.  Tidd,  3  Met.  6.  So  where 
chattels  were  delivered  by  the  owner  to 
a  bailee,  with  the  ri^ht  to  purchase  thera 
by  pavinfi  a  certain  price,  so  that  he  had 
the  actual  legal  and  rightful  possession, 
although  he  ha  1  not  performed  the  condi- 
tion on  which  he  was  to  have  the  abso- 
lute title,  and  he  sold  them  to  a  third  rier- 
son,  who  resold  them  before  any  demand 
made  upon  him  and  without  notice  of  the 
agreement  between  his  vendor  and  the 
original  owner,  he  was  held  not  to  be  lia- 
ble to  the  latter  in  trov3r.  Vincent  v. 
Cornell,  13  Pick.  294.  See,  also.  Day  v. 
Bassett,  1(12  Mass.  44.5.  And  trover  will 
not  lie  against  a  servant  for  takMng  goods 
by  his  master's  command  and  for  his 
master's  use,  when  the  command  is  nut 
to  do  an  api)arent  wrong,  and  the  serv- 
ant's i)os8essiou  is  lawful.  Bui.  N.  P.  47. 
Powell  v.  Hoylaud,  G  E.\ch.  C7. 

In  the  case  of  a  sale  of  goods,  indeed, 
the  purchaser  is  bound  to  look  to  his  title, 
and,  if  he  obtains  them  from  one  who  is 
not  the  lawful  owner  or  his  authorized 
agent,  cannot  hold  them  against  liim.  2 
Kent,  Com.  (Gth  Ed.)  .324.  Jf  the  goods 
have  been  stolen,  the  property  does  not 
pass  by  delivery  and  a  person  who  de- 
rives his  title  from  the  thief  gains  no 
rights  as  against  the  lawful  ewner,  and  if 
he  either  refuses  upon  demand  to  deliver 
them  u]),  or  sells  them  and  turns  them 
into  mone.v,  or  otherwise  converts  chero 
to  his  own  use,  he  is  liable  to  the  lawful 
owner  in  trover.  Pame  v.  Baldwin,  S 
Mass.  .518.  Heckle  v.  Lurvey,  101  Mass. 
344.  Upon  this  principle,  it  is  held  that 
an  auctioneer,  who  receives  and  sells 
stolen  goods,  not  knowing  nor  having  rea- 
son to  believe  that  they  were  stolen;  or 
a  person  who  in  good  faith  buys  a 
stolen  horse,  and  afterwards  exercises 
dominion  over  him  by  letting  him  to  a 
third  person ;  is  liai)le  to  the  rightful 
owner  in  trover,  without  a  previous  de- 
mand. Hoffman  v.  Carow,  22  Wend.  2S5. 
Coles  V.  Clark,  3  ("usli.  399.  Gilmore  v. 
Newton,  9  .\llen,  171.  Yet  even  in  the  case 
of  stolen  goods,  a  mere  naked  bailee,  who 
does  no  act,  and  has  no  intent,  to  con- 
vert them  to  his  own  use,  or  withhold 
them  from  the  owner,  and,  before  any 
demand  upon  him,  delivers  them  back  to 
the  person  from  whom  he  received  them, 
is  not  guilty  of  a  conversion,  although  he 
knew  that  they  were  stolen.  Loring  v. 
Mnlcahy,  3  Allen,  575. 

But,  in  the  opinion  of  a  majority  of  the 
court,  the  coupons  in  question  do  not 
stand  upon  the  same  ground  as  chattels. 
They  were  negotiable  promises  for  the 
payment  of  money,  issued  by  the  govern- 


ment, payable  to  bearer  and  transferable 
by  mere  delivery,  without  assignment  or 
indorsement.  They  are  therefore  not  to 
be  considered  as  goods,  but  as  representa- 
tives of  money,  and  subject  to  the  same 
rules  as  bank  bills  or  other  negotiable  in- 
struments payable  in  money  to  bearer. 
VVookey  v.  Pole,  4  B.  &  Aid.  1.  (Jorgier  v. 
Mieville,  4  D.  &  R.  641 ;  S.  ('.  3  B.  &  C.  45. 
Commonwealth  v.  Emigrant  industrial 
Savings  Bank,  98  Mass.  12.  The  rule  of 
caveat  emptor  does  not  apply  to  them. 
It  is  now  well  settled  that  the  bearer  of 
a  bank  bill  which  has  been  stolen  from  the 
bank  may  recover  the  amount  from  the 
bank,  unless  it  is  proved  that  he  did  not 
take  it  in  good  faith  and  for  valuable  con- 
sideration; and  thathis  knowledgeof  sus- 
picions circumstances  is  immaterial,  un- 
less amounting  to  proof  of  want  of  good 
faith.  Worcester  County  Bank  v.  Dor- 
chester &  Milton  Bank,  10  Cush.  4.SS.  Wyer 
V.  Dorchester  &  Milton  Bank,  II  Cush.  51. 
Kaphael  v.  Bank  of  England,  17  C.  B.  IGI. 
And,  according  to  the  great  weight  of  au- 
thority, the  same  rule  applies  to  bills  of 
exchange  or  promissory  notes  payable  to 
bearer.  Goodman  v.  Simonds,  20  How. 
343. 

The  jury  have  found  that  the  defendant 
took  these  coupons  in  good  faith,  without 
gross  negligence,  and  as  agent  of  his 
employer.  He  thus  acquired  a  lawful  pos- 
session of  them,  which  was  no  evidence  of 
a  conversion  He  then,  before  any  de- 
mand or  notice  from  the  rightful  owner, 
transferred  them  by  delivery,  and  ex- 
changed them  for  money,  the  amount  of 
which  ho  paid  over  to  his  employer.  This 
case  does  not  present  thequestion  whether 
the  defendant  could  have  been  held  liable 
to  the  rightful  ownerfor  thecouponsor  the 
proceeds  while  in  his  own  hands,  nor 
whetlierhecould  beheld  to  have  paid  value 
for  them.  The  single  (juestion  is,  whether 
he  has  been  guilty  of  a  wrongful  conver- 
sion ,  and, considering  the  natureof  the  in- 
struments, and  the  fact  that  thedefendant 
was  acting  in  good  faith,  without  gross 
negligence,  as  agent  only,  without  himself 
receiving  any  benefit  from  the  transaction, 
a  m.ijority  of  the  court  is  of  opinion  that 
neither  taking  the  coupons  by  delivery, 
transferring  them  by  delivery,  nor  paying 
over  the  proceeds  to  his  employer,  consti- 
tuted a  conversion  for  which  he  can  beheld 
liable  in  an  action  of  tort  in  the  nature 
of  trover.  .Addison  on  Torts,  (3d  Ed.) 
317.  The  instructions  to  the  jury  were 
therefore  quite  favorable  enough  to  the 
plaintiff. 

The  letter  admitted  against  the  objec- 
tion of  the  plaintiff  was  competent  evi- 
dence of  the  manner  in  which  and  the  cir- 
cumstances under  which  the  defendant 
received  the  coupons,  although  it  did  not 
of  itself  prove  that  it  was  written  by  his 
employer. 

Exceptions  overruled. 


SPHAIGIITS  V.  H.VWI,KV 


76» 


SPRAIGHTS  V.  HAVVLKY. 

(39  N.  Y.  441.) 

Court  of  Appeals  of  New  York.     June  Term, 

1>)0S. 
Aftidii    lo    rt'i-ovor   (lutnaKt'H   (.•aused    by 
u  Hnlf  of  ccrtiiiii  jewelry  by  (lefetidaiit  bh 
agent  of  the  owners,  wlio  had  niortgaKed 
the  jewelry  to  plaintiff. 

Geo.  F.  Com.Htoek,  for  a|ii>'.-llant.  R. 
Wooaworth,  tor  respondent. 

WOODRUFF,.!.  The  facts  in  this  ease 
show  title  in  the  plaintiff  to  the  property 
in  question,  and  a  disposition  thereof  by 
the  defendant  avowedly  and  solely  as 
agent  for  Eugc^iia  Ashby,  the  former  own- 
er anil  one  of  tin-  mortgagors. 

The  defendant's  answer  avers  that  he 
acted  ap  such  agent,  vvilhout  any  interest 
or  claim  of  interest  in  the  same,  or  its 
proceeds.  The  referee  lin<ls  as  u  fact  that 
lie  acted  simply  as  the  agent  of  Charles 
Ashby,  or  of  Charles  Ashby  and  his  said 
wife. 

The  title  of  the  plaintiff  was  valid,  both 
upon  the  facts  found,  and  upon  the  legal 
conclusions  stated  by  the  referee. 

It  follows  that  the  disposition  of  the 
proi)erty  l>y  Ashby  and  wife  was  a  tor- 
tious conversion  thereof,  and  so  the  ref- 
eree finds. 

No  question  of  fraud  in  the  mortgage  to 
the  plaintiff  or  otherwise,  nor  any  failure 
to  iiiace  his  mortgage  on  tile  pursuant  to 
the  statute,  was  deemed  by  the  referee  or 
by  the  supreme  court,  nor  by  the  counsel  } 
for  the  appellant,  to  arise  in  the  case;  he- 
cause  as  against  the  mortgagors  and  their 
mere  agent,  the  bona  fides  of  the  rr.ort- 
gage  and  the  tiling  thereof  were  regarded 
as  wholly  immaterial,  and  as  against 
them  the"  mortgage  was  held  valid,  even 
though  made  to  defraud  creditors,  and 
whether  tiled  or  not.  It  is  however  more 
satisfactory  to  say  that  l)oth  good  faith 
and  due  filing,  and  renewal  of  the  mort- 
gage, are  facts  in  the  case  duly  proved 
and  found. 

The  case  therefore  raises  the  single  (|ups- 
tion,  whether  the  possession  of  the  mort- 
gagors is  such  evidence  of  ownership  or  of 
authority  to  make  sale  of  the  i)roperty, 
thai  the  defendant,  acting  in  good  faith  as 
Iheir  agent,  in  the  belief  that  they  were 
owners,  is  |)rotected  thereby  against  the 
claim  of  the  plaintiff  to  recover  for  a  sale 
and  disposition  thereof.  (Some  stress  was 
said  upon  tlie  fact  that  this  transaction 
was  more  than  a  year  after  the  mortgage 
debt  became  payable,  and  the  continued 
pos.'icssion  of  the  mortgagors  during 
that  time  is  claimed  to  i)e  hiclies  on  t he 
part  of  the  plaintiff,  warranting  the  de- 
fendant in  trustiu'i  to  their  apparent  own- 
ership and  e.xecuting  their  direction  to 
sell  the  property. 

This  reasoning,  sought  to  he  applied  to 
this  case,  seems  to  nie  to  overlook  the 
fact  found  by  the  referee,  tliat  for  more 
than  a  year  of  that  period  the  plaintiff 
had  been  in  the  actual  prosecution  of  an 
action  to  enforce  his  rights  against  the 
mortgagors;  and  thefurthercircnmstnnce 
that  the   defendant  is  In  nowise  shown  to 


have  been  affected  by  or  to  have  had  any 
knowledge  whether  the  mortgagors  hail 
been  in  the  iiossession  of  the  pro|.erty  one 
year  or  one  day.  Me  was  not  nii-N'iihito 
any  trusting  to  a  long-continued  posReH 
sion.  for  it  does  not  appear  that  he  ever 
saw  or  henril  of  the  property  until  the 
day  on  which  it  was  brought  to  him  for 
sale. 

I  do  not  however  attach  importance 
to  this,  for  I  am  not  a  ware  of  nny  prin- 
ciple or  any  authority  whii-h  makes 
such  mere  possession,  in  the  absence  of 
fraud,  amount  to  a  jUHtltlcadon  to  tlie 
ug<-nt  in  u  fraudulent  cllsponlli<in  of  the 
property. 

It  is  placed  by  the  appellants  upon  some 
general  idea,  that  because  the  mortga- 
gors had  i)ossession,  and  the  defendant 
honestly  believed  they  were  owniTs,  and 
in  that  belief,  innocent  of  any  wrongful  In- 
tent, solil  tiie  property  an<l  paid  over  the 
|)roceeds,  it  is  not  just  th.'it  he  should  lie 
held  responsible.  In  other  words,  it  Is 
as  to  the  defendant  a  hard  case. 

Now  all  this  would  be  very  well  l(  it 
were  true  that  mere  possession  of  perscmnl 
pro|ierty  was  such  evidence  of  ownership 
or  of  authority  to  dispose  thereof,  that 
all  persons  were  at  liberty  to  assume  such 
ownership  or  authority,  and  act  in  reli- 
ani-e  thereon.  Lnfortun.'itely  for  the  ap- 
pellant, this  is  not  so.  Indeed,  the  cases 
in  which  possession  imports  such  author- 
ity are  very  few,  and  the  mere  fact  of  pos- 
session, unaccompanied  by  other  circum- 
statices.  giving  it  a  specilic  charucter.  In- 
dicative of  authority,  never  does. 

Inileed,  every  consideration  which  Is 
urged  for  the  ijrotection  of  the  defendant 
would  have  aiipealed  as  strongly  in  his 
behalf  if  it  iiad  appi-ared  t nat  .\shliy  had 
stolen  the  pr()|)erty  from  the  pWiintirf. 
Ashliy's  possession  would  have  borne  the 
same  aspect  ol  apparent  ownership,  and 
the  defendant's  sincere  g I  faith  and  in- 
nocence of  wrong  would  have  been  equal, 
ly  deserving  of  consideration. 
'  '  True,  in  such  case,  the  possession  of 
Ashby  would  have  been  against  the  will 
Of  tlie  plaintiffs;  but  even  then,  why 
should  it  not  be  said  that  the  plaintlft 
should  have  taken  care  that  his  property 
be  not  stolen  and  not  suiter  the  innocent 
defendant  to  become  a  sufferer? 

But  take  a  stronger  case :  suppose  the 
property  had  been  loaneil  by  the  plaintiff 
to  .\shby;  it  would  n4)t  in  that  case  lie 
claimed,  any  more  than  if  stolen  by  the 
latter,  that  Ashby's  possession  woulil 
lirotect  the  delendant,  and  yet  the  hard- 
ship of  holding  him  responsible  would  bo 
in  all  respects  the  same  as  in  this  casi-. 

I  consider  that  it  is  hard  .n  one  sense 
that  the  defendant  should  be  compelled  to 
indemnifv  the  pl.iintiff.  It  is  so,  because 
it  is  not  easy  always  to  be  perfectly  sate 
in  one's  dealing. 

Hut  chattels  are  not  neRotinble.  Pr«- 
session  is  not,  ns  in  the  case  of  mercantile 
paper  and  money,  assurance  of  title  «  r  of 
authority  to  dispose  of.  The  servant  In- 
trusteil  with  the  possession  o(  his  master's 
Iproiiertv,  does  not  thcrel>y  give  •luthorlfy 
,  to  sell  it  or  to  authoiiie  anol  her  tosell  it. 
I  The  borrower  of  a  chattel  or  the  ordl- 
nnrv    bailee  does   not    by    his   possession 


764 


SI'KAIGHTS  V.  HAWLEY. 


Rain  any  such  power.  And  in  short,  the 
rule  thiit  no  one  can  bo  (Ipi)riv('(l  of  his  ti- 
tle without  Ilia  own  consent  has  no  sucli 
flxception  as  is  thought  to  be  created  in 
this  cane.  And  tlie  converse  rule,  that  he 
who  fissnnies  to  deal  or  intermeddle  with 
personal  proi)erty  which  is  nut  his  own, 
must  see  to  it  that  he  has  a  warrant 
therefor  from  some  one  who  is  authorized 
to  give  it,  has  no  such  application.  An- 
derson V.  Nicliolas,  5  liosw.  l:!l),  and  cases 
cited.  If  lie  buys  from  or  consents  to  act 
by  direction  of  another,  he  must  see  to  it 
that  in  tlis  responsibility  of  such  other 
he  can  find  indemnity  if  his  confidence  is 
misplaced. 

All  there  is  therefore  of  hardship  to  the 
defendant  is  that  he  has  undertaken  to 
execute  a  commis.sion  for  Ashby  or  Ashby 
and  wife,  and  if,  in  consequence  of  actintr 
upon  tlie  fraud  or  misrepresentation,  he  is 
subjected  to  liability  to  the  plaintiff,  lie 
will  have  to  look  to  them  for  indemnity. 
Perhaps  the  findins  of  the  refereeindicates 
that  Ashby  is  insolvent;  if  so,  tliat  makes 
the  hardship.  But  even  that  is  not  a  jie- 
<;uliar  case;  it  is  most  common  in  the 
affairs  of  business;  and  having,  as  the  ref- 
eree finds,  heard  that  Ashby  was  insolvent 
when  he  undertook  the  commission,  he 
might  have  known  that  his  recourse  to 
him  for  indemnity  might  fail. 

The  doctrine  of  the  cases  cited  in  the 
prevailing  opinion  in  the  supreme  court 
<loes  not  appear  to  be  controverted  by 
the  counsel  for  the  appellant,  and  yet  they 
seem  to  me  decisive  in  this  case  of  the  prin- 
ciple that  the  agent,  in  a  tortious  conver- 
sion of  another's  property,  is  liable  when 
his  principal  is  guilty  of  the  tort;  and 
even  though  the  agent  act  innocently  in 
good  faith,  relying  on  the  possession  and 
apparent  authority  (if  possession  bo 
deemed  sncli)  of  his  principal.  Perkins  v. 
Smith,  1  \v'ils.  3iS.  An  innocent  clerk  sold 
goods  for  the  use  of  his  master  (Stephens 
V.  L:iwall,4  M.  &  S.  2,")9) ;  an  innocent  clerk 
received  goods  from  his  master's  agent 
and  sent  them  to  his  master  abroad.  In 
this  case  the  (disprvati(jn  of  Lord  Rllen- 
borough  covers  this  whole  case:  "The 
only  (]uesti(>n  is,  whether  this  is  a  conver- 
sion in  the  clerk  which  undoubtedly  was 
so  in  the  master.  The  clerk  acted  under 
an  unavoidable  ignorance  anil  for  his 
master's  benetit  when  he  sent  the  goods 
to  his  master,  but  nevertheless  his  acts 
ma.v  amount  to  a  conversion,  for  a  person 
is  guilty  of  a  conversion  whointermeddles 
Willi  my  property  and  disposes  of  it,  and 
it  is  no  answer  that  he  acted  under  the 
authority  of  another  who  had  himself  no 
authority  to  dispose  of  it."  Mct.'ombie 
V.  Davies,  6  Kast,  .i3S;  Baldwin  v  Cole,  6 
Mod.  212;  Thorp  v.  Burling,  11  Johns. 
2S5;  Farrar  v.  Chauffetete,  5  Don.  .527; 
Pearson  v.  Graham,  33  E.  C.  L.  -IGS;  Ever- 
ett V.  Coffin,  6  Wend.  609;  22  Am.  Dec.  m\  ; 
•Spencer  v.  Blackman,  9  Wend.  167;  Wil- 
liams V.  Merle,  11  Id.  >>0;  25  Am.  Dec.  (i04. 

.And  these  cases  recognize  and  affirm  the 
more  general  rule  .-ibove  stated,  that  he 
who  intermeddles  with  personal  property 
not  his  own  must  see  to  it  that  he  is  pro- 
tected by  the  authority  of  one  who  is  him- 
self by    ownership   or   otherwise,  clothed 


with  the  authority  lie  attempts  to  confer. 

Recurring  again  to  the  able  and  ingen- 
ious argument  in  support  of  the  appeal, 
and  to  the  point  that  the  plaintiff  was 
guilty  of  laches,  and  that  by  suiiposing 
the  mortgagors  to  be  in  possession  he  en- 
abled them  to  deceive  the  defendant  and 
produce  the  result.  This  assumes  that  it 
is  negligence  in  the  owner  of  personal 
property  to  permit  it  to  be  in  the  posses- 
sion of  another.  I  am  not  jiware  of  any 
warrant  for  such  assumption.  So  long 
as  it  is  true  that  a  mortgage  given  in 
good  faith  and  for  sutticieut  considera- 
tion is  valid,  notwithstanding  possession 
may  he  in  the  mortgagor,  so  long  such 
possession  no  more  involves  culpable  neg- 
ligence or  lachesin  themortgage,  than  the 
possession  of  a  servant,  hirer,  or  other 
bailee,  imports  negligence  in  the  owner. 
In  truth  so  long  as  mere  fiossession  does 
not  import  authority  to  sell  the  negli- 
gence, if  any,  is  on  the  part  of  him  whore- 
lies  upon  it,  and  not  on  the  owner  who 
permits  it. 

And  the  suggestion  gains  no  strength 
from  the  observation  that  if  the  plaintiff 
had  not  supposed  the  mortgagors  to  bo 
in  possession  it  would  not  have  been  in 
their  power  to  deceive  the  defendant,  and 
where  one  of  two  innocent  persons  must 
suffer  by  the  wrong  of  anotner.  the  one 
who  enables  such  other  to  commit  the 
wrong  must  bear  the  consequences. 
How  did  the  mere  possession  of  the  mort- 
gagorsenable  them  tocommit  the  wrong? 
Only  by  giving  them  physical  i)ower  to 
deliver  the  property.  The  maxim  is  not 
true  in  the  sense  in  which  it  is  sought  to 
be  here  applied.  If  it  were,  then  as  in  the 
other  cases  above  referred  to,  whenever 
an  owner  suffers  his  property  to  go  out 
of  his  manual  keeping  or  presence,  he  is 
liable  to  lose  it  by  the  same  means  em- 
ployed here,  and  is  exposed  to  the  maxim 
here  invoked  for  the  defendant's  protec- 
tion. It  is  only  when  the  owner  has  part- 
ed with  the  legal  title  upon  some  secret 
trust  or  condition,  or  has  done  something 
calculated  to  mislead,  upon  which  a  third 
person  has  a  right  to  rely,  and  on  which 
he  does  rely  as  evidence  of  authority,  that 
such  maxim  could  have  any  application. 
And  the  attempt  to  apply  it  here  begs  the 
whole  question.  SeeCowen,  J.,  in  Ash  v. 
Putnam,  1  Hill,  307.  Mere  possession  of 
another's  property  is  not  such  evidence  of 
ownership  or  authority  to  sell,  that  third 
persons  have  a  right  as  against  the  true 
owner,  to  rely  thereon. 

They  may  act  in  faith  thereof  if  they 
please,  but  they  must  rely  uiion  the  fiarty 
with  whom  they  deal,  and  look  to  him 
for  indemnity  if  the  title  fails,  or  they  be 
deceived  or  defrauded  into  a  condition  of 
responsibility 

This  is  the  defendant'ssituation  ;  he  has 
trusted  the  representations  of  Ashby.  He 
has  been  deceived  thereby,  and  he  must 
look  to  him  for  indemnity. 

The  order  of  the  general  term  of  the  su- 
preme court  granting  a  new  trial  should 
be  affirmed,  and  in  pursuance  of  the  de- 
fendant's stipulation  judgment  absolute 
for  the  plaintiff  must  be  rendered. 

All  concur. 


STANTON  0.  EAGER. 


767 


STANTON  et  al.  v.  EAGER.  i 

(16  Pick.  467.)  | 

Supreme  Judicial  Court  of  Massachusetts.     Suf- 
folk and  Nantucket.     June  2,  1835. 

Trover  to  recover  (JninaRi's  for  the  tak- 
ing and  conversion  of  a  quantity  of  to- 
bacco pipes.  I 

The  parties  stated  a  caBO.  ' 

WillinmB,  Putnam  &  Co.,  of  Roston,  In 
October  IS!!;!,  wrote  to  C.  Morrall  &  Son, 
a  houHo  in  Liverpool,  reqnt-HtinK  tlieni  to 
Bhi])  tlie  pi[)es  in  riin'stion  to  NVilliunis, 
Putnam  &  Co.  and  on  tlioir  account,  by 
tliBHliii)  Morea.  In  compliance  with  tliiH 
order,  .Morrall  &  Son,  on  December  4,  IH.i;), 
Bliipped  the  pipes  on  board  the  Morea, 
for  th(!  account  of  Williams,  Putnam  & 
Co.,  and  the  master  Hi(;ned  four  bill.s  of 
lading,  in  whicli  he  a>j;ree(l  to  deliver  the 
pipes  to  Williams,  Putnam  &  Co.  or  their 
assigns.  .Morrall  &  Son  addresseil  a  let- 
ter to  Williams,  Putnam  &  Co.,  dated 
December  7,  ISo.'},  in  which  they  stated 
that  they  encloHed  an  invoice  and  bill  of 
lading  of  the  pipes  "at  their  debit,"  but 
in  fact  the  bill  of  ladinjionly  was  enclosed.  I 
This  letter  was  retained  and  afterwards 
sent  under  cover  of  a  letter  to  the  defend- 
ant, dated  December  23,  1)533,  liereafter 
mentioned. 

On  the  2l8t  of  the  same  December,  Mor- 
rall &  Son  aKain  wrote  to  Williams,  I'ut- 
nani  &  Co.,  but  without  mentiouin^  the 
pipes. 

On  December  23d,  Morrall  &  Son  wrote 
to  the  defendant  as  follows:  "Inconse- 
quence of  a  very  unfriendly  letter  just  re- 
ceived from  Messrs.  WillijimH,  Putnam  & 
Co.,  we  have  withheld  the  invoice  of 
pipes  from  them,  and  now  enclose  It  with 
the  bill  of  lading,  to  be  delivered  up  how- 
ever on  their  paying  yuu  Hie  amount  by 
a  bill  on  England;  but  should  they  decline 
to  receive  the  pi()es  on  this  condition,  j'ou 
will  please  to  sell  them  on  our  account, 
and  remit  us  the  proceeds.  We  have  writ- 
ten to  Messrs.  Williums,  Putnam  &  Co. 
to  the  above  effect,  .it  the  same  time  it 
is  due  to  them  to  mention,  that  in  the 
course  thus  adopted,  we  are  solely  in- 
fluenced l)y  the  very  natural  desire  of  self 
protection  against  hostile  parties."  In 
a  postscript, dated  on  the  '.Mth,  the  defend- 
ant was  requested  to  insure  the  pipes,  in 
case  Williams,  Putnam  &  Co.  had  not 
done  so,  and  to  add  the  cost  to  the  in- 
v<iice  in  settling  with  them.  In  this  letter 
was  enclosed  the  letter  of  Morrall  &  .Son 
to  Williams,  Putnam  &  Co.,  dated  Decem- 
ber 7,  1S33. 

It  appeared,  that  in  the  letter  of  Wil- 
liams, Putnam  &  Co.  which  was  referred 
to  in  the  above  letter,  and  which  was 
dated  November  21,  1S3:!,  they  stated, 
that  they  should  hold  .Morrall  *  Son  re- 
sponsible for  the  difference  between  the 
net  proceeds  of  the  sale  of  a  (piantity  of 
cotton  consigned  by  them  to  .Morrall  & 
Son,  and  its  value  a  short  time  after  such 
sale,  the  sale  having  been  made  contrary 
to  their  orders.  The  defendant  objit-ted 
to  the  admission  of  this  letter  in  evidence. 

On  .January  3,  1S34,  Williams,  Putnam 
&  Co.  became  Insolvent,  and  assigued  their 
property  to  the   plaintiffs  for  the   benefit 


of  such  of  their  creditors  on  ahoald,  by 
becoming  parties  to  the  indenture  of  as- 
signment, release  their  demands.  The  in- 
denture declared  the  Insolvency  of  the  as- 
signors, but  [irovlded  that  they  should 
be  consulted  in  the  dlspoRltion  of  the 
propr-rty.  The  pipes  were  described  In  a 
schedule  which  was  anne.xed  to  the  as- 
signment and  which  purfiorted  to  convey 
all  balances  In  the  hands  of  divers  per- 
sons, naming  .Morrall  &  Son,  subjtvt  to 
all  such  liens  as  they  might  have  for  ad- 
vances, &c.  The  definilant  e.xeouled  the 
assignment,  as  the  attorney  of  .Morrall 
&  Son.  The  letter  of  .Morrall  *  Son  to 
Williams,  Putnam  &  Co.,  date>l  Dwember 
7,  1S33,  and  covering  the  bill  of  lading, 
was  handed  by  the  defendant  toWilllamH. 
Putnam  &  Co.  with  a  copy  of  the  envel- 
ope, on  or  about  February  24,  ls:il,  Ht 
which  time  the  pipes  had  not  arrived. 
This  bill  of  lading  was  immediately  hand- 
ed by  Williams,  Putnam  &  Co.  "to  the 
plaintiffs,  l)ut  was  not  endorsed  until 
after  the  commencement  of  this  action. 
In  the  assignment,  the  assignors  cove- 
nanter! to  execute  further  asnurances,  and 
to  deliver  all  doeuments  relating  to  the 
property  assigned,  as  soon  as  they  should 
receive  them. 

The  .Morea  arrived  on  or  about  March 
3,  ls;i4,  and  was  entered  by  the  defendant, 
who  was  the  sole  owner  and  consignee  of 
the  ship,  and  also  the  agent  of  Morrall  & 
Son.  The  |)i|ies  were  insured  by  the  <le- 
fendant,  and  were  enterecl  at  the  custom- 
house by  him.  It  being  agreeil  that  this 
should  be  done  without  prejuillce  to  the 
rights  of  the.  plaintiffs,  and  were  taken  to 
the  defendant's  store.  The  defenilnnt  re- 
fused to  deliver  them  to  the  plaintiffs 
when  demanded;  and  they  were  after- 
wards sold  by  agreement,  without  prej- 
udice to  the  rights  of  any  persons;  hut 
the  plaintiffs  never  (laid  to  the  defendant, 
nor  tenderi'd  luiyment  of  their  value.  At 
that  time  Williams,  Putnam  &  Co.  were 
indebted  to  Morrall  &  Son  In  a  much 
larger  sum  than  the  value  of  the  pipes. 

On  April  !(),  1n34,  Morrall  &  Son  wrote 
to  the  defendant,  confirming  IiIb  doings. 

The  defendant  could  prove.  If  the  court 
should  ileem  the  facts  ndmlsslbli'  In  evi- 
dence, that  when  he  hanili'd  to  Willinins, 
Putnam  &  Co.  the  letter  of  December  7th, 
he  informed  them  that  he  should  retain 
the  tiill  of  lading  ami  invoice,  and  should 
not  deliver  the  pipes  until  the  purchase 
money  was  paid;  that  he  subsequently 
offerell  to  deliver  to  them  the  pipes  if  thi-y 
would  l>ay  the  purcha^^e  nione.v,  which 
they  ngreell  to  do,  tint  the  plnlntirfs  olr 
jected,  claiming  the  pi|ies  as  their  own  by 
virtue  of  the  assignmi-nt  and  bill  of  lad- 
ing: anil  that  the  defendant  subsequently 
wrote  to  the  plaintiffs,  sayltig  that  he 
should  not  deliver  the  pipes  until  the 
amount  of  the  Invoice  and  expenses  was 
l)aid.  The  plaintiffs  objected  to  thcndniis- 
sion  of  tbesefaits  inevldence.  If  the  court 
should  be  of  opinion,  that  the  plalntlfTs 
were  entitled  to  recover,  judgment  was 
to  lie  rendered  in  llieir  favor  for  the  value 
of  the  pliies  at  the  time  of  Iheir  arrival, 
with  Interest;  otherwise  the  ilefeudant 
was  to  have  judgment  for  his  costs. 
I     The  case  was  arguetl  In  writlnic- 


768 


STANTON  V.  EAGER. 


C.  G.  LorinR  and  F.  C.  Loring,  for  plaiu- 
tifls.    Cooke,  for  defeudant. 

SHAW,  0.  J.  Until  the  parties  to  this 
suit  are  creditors,  or  representatives  of 
the  creditors,  of  an  insolvent  mercantile 
house,  and  the  question  is,  which  shall 
have  the  benelit  of  the  small  amount  of 
merchandise,  which  is  the  subject  of  this 
action;  and  this  question  depends  upon 
another,  which  part.v  can  estaDllsh  the 
better  legal  title.  It  seems  to  have  been 
thousht  by  Williaiiis,  Putnam  &  Co.,  at 
the  time  of  their  assignment,  that  Morrall 
&  Son  were  indebted  to  them;  j'et  it  is 
now  found  as  a  fact  in  the  case,  that  at 
that  time  a  considerable  balance,  inde- 
l)endent  of  tliecostof  the  pipes,  wasdue  to 
.Morrall  &  Son. 

The  facts  appear  sufficiently  in  the 
agreed  statement,  and  it  will  not  be  nec- 
essary to  reeapitnlate  them.  It  was  con- 
tended, on  the  part  of  the  defendant,  that 
by  the  shipment  of  the  pipes  in  Liverpool, 
the  bill  of  lading  having  never  been  deliv- 
ered or  forwarded  to  the  consignees,  but 
retained  by  the  consignors  and  forwarded 
enclosed  to  their  own  agent,  the  property 
never  legallv  vested  in  the  vendee.  But 
the  court  are  strongly  inclined  to  the  opin- 
ion, that  the  orders  of  Williams,  Putnam 
&  Co.  to  ship  the  pipes  for  their. account, 
and  the  actual  shipment  of  the  goods, 
pursuant  to  surh  order,  on  board  of  a 
vessel  ilesignated  by  the  vendees  for  that 
purpose,  and  for  their  account,  and  ob- 
taining from  the  master  a  bill  of  lading 
for  the  goods,  making  them  deliverable 
to  the  vendees,  constituted  a  good  con- 
tract of  sale,  and  a  good  constructive  de- 
livery, so  as  to  Vest  the  property  in  the 
goodM,  in  the  vendees,  and  place  them  at 
their  risk.  This  conclusion  is  founded, 
not  upon  the  sui)posed  specific  effect  of  ex- 
ecuting or  delivering  a  bill  of  lading,  or 
the  peculiar  character  supposed  to  be  at- 
tached to  a  bill  of  lading  as  a  quasi  nego- 
tiable instrument,  but  upon  the  general 
principle  of  the  common  law, applicable  to 
the  sale  of  personal  property. 

We  are  to  understand,  that  the  Morea 
was  tor  this  purpose  a  general  freighting 
ship,  and  the  master  was  acting  in  regard 
to  goods  on  freight,  as  a  common  carrier; 
and  this  being  the  case,  the  fact,  if  it  were 
BO,  that  the  vessel  was  for  some  purposes 
con.signed  by  the  defendant,  the  owner, 
to  the  house  of  Morrall  &  Son,  made  no 
difference  in  regard  to  these  goods.  It 
then  appears  that  the  delivery  of  the 
goods  on  board  the  vessel  was  not  condi- 
tional, and  nothing  was  then  done  hy  the 
consignors,  to  prevent  the  general  prop- 
erty in  the  goods  from  vesting  in  the  con- 
signees. The  withholding  of  the  bill  of 
lading,  and  enclosing  it  to  their  own 
agent  to  be  delivered  only  in  case  the  ven- 
dees should  pay  for  the  goods,  could  not 
convert  the  absolute  deliver3'  into  a  con- 
ditional one,  or  divest  the  property  in  the 
goods,  which  liad  vested  by  the  delivery 
of  them  on  board  the  vessel  designated, 
pursuant  to  the  order  of  the  consignees. 

But  though  by  these  proceedings  the 
property  vested  in  the  consignees,  it  was 
subject  to  the  well  established  right  of 
the  vendors,  to  stop  the  goods  in  tran- 


situ, in  case  the  goods  are  sold  on  credit, 
and  the  consignees  become  insolvent;  and 
this  right  may  be  exercised  at  any  time 
before  the  goods  reach  their  ultimate  des- 
tination and  come  to  thepossession  of  the 
consignees.  And  the  consignors  have  a 
right  to  judge  for  themselves  of  the  dan- 
ger of  such  Insolvency,  and  to  take  meas- 
ures to  guard  against  it  by  stopping  the 
goods  in  transitu,  should  the  insolvency 
occur  before  the  goods  come  to  the  pos- 
session of  the  consignees.  The  effect  of 
such  stoppage  in  transitu  is  not  to  rescind 
the  contract,  or  to  revest  the  general 
property  in  the  vendors,  but  to  reinstate 
them  in  their  lien  and  right  to  hold  the 
goods  in  security  for  the  price. 

The  consignors  might  have  exercised 
this  rigi't  at  Liver[)ool,if  they  ha.l  groimd 
to  apprehend  the  insolvency  of  the  con- 
signees before  the  arrival  of  the  goods, 
and  such  insolvency  had  occurred  accord- 
ingly; and  perhaps  the  change  of  the  des- 
tination of  the  goods,  after  the  shipment, 
by  enclosing  the  bill  of  lading  to  their 
own  agent,  with  directicjns  not  to  deliver 
the  goods  to  the  vendee,  without  receiving 
payment  or  security,  might  amount  to 
such  a  stoppage.  But  it  is  not  necessary 
to  consider  this  point,  because  the  court 
are  of  opinion,  that  the  acts  done  by  the 
:lefendant  here,  under  the  express  author- 
ity and  direction  of  tlie  shijipers, especially 
as  the  defendant  was  the  ship-owner  and 
obtained  actual  possession  of  the  goods 
before  they  could  reach  the  hands  of  the 
vendees,  or  their  assignees,  was  an  effect- 
ual e.xercise  of  the  right  to  stop  in  tran- 
situ, if  it  existed  as  against  the  plain- 
tiffs. 

And  the  court  are  of  opinion,  that  the 
plaintiffs,  in  this  respect,  stand  precisely 
In  the  place  of  the  original  vendees,  and 
not  in  the  place  of  bona  tide  i)urchasers. 
claiming  under  a  bill  of  lading,  without 
notice  of  any  lien,  set-off,  or  adverse 
claim.  The  plaintiffs  were  assignees,  with 
full  notice  of  the  insolvency  of  the  assign- 
ors. Had  there  been  a  balance  due  on 
general  account  from  Morrall  &  Son,  to 
Williams.  Putnam  &  Co.,  at  the  time  of 
the  execution  of  the  order,  as  it  is  said  the 
assignees  supposed  there  was,  it  would 
have  presented  a  very  different  question. 
In  that  case,  shipping  the  goods,  pursu- 
ant to  the  order  of  the  vendees,  and  char- 
ging them  in  account,  would  have  l)een  no 
more  than  an  appropriation  of  their  own 
funds,  according  to  ttieir  own  order,  and 
not  a  sale  upon  credit,  and  the  right  to 
stop  in  transitu  would  not  have  existed. 
But  although  the  assignees  so  supposed 
and  believed,  and  were  entirely  without 
any  imputation  of  blaiue  in  taking  a  con- 
veyance of  the  goods,  yet  when  it  turns 
out,  as  upon  the  facts  it  appears  to  have 
been  done  in  this  case,  that  Morrall  & 
Son  were  already  creditors  of  Williams. 
Putnam  &  Co.,  that  the  goods  were  or- 
dered and  put  on  board  ship  solely  on  the 
pei'sonal  credit  of  the  vendees,  the  right 
to  stop  in  transitu  is  shown  to  be  com- 
plete, against  the  vendees.  And  that 
right  is  equally  perfect  against  all  others, 
except  a  purchaser  taking  bona  fide,  by 
indorsement  of  the  bill  of  lading,  in  the 
usual  course  of  trade,  without  notice  of 


STANTON  t>.  EAGEB. 


769 


the  consignor's  right  to  atop  the  goods  in 
traiiHitu.  In  tlie  tiresentcase  tlu'HP  con- 
(litioHH  are  all  wanting.  The  plain  tiffs  did 
not  tiiko  under  an  indorsement  of  the  liill 
of  lading,  the  l)ill  of  lading  not  having 
been  indorsed  until  after  the  action  was 
commenced.  It  is  aaid  in  answer,  that  at 
the  time  of  the  assignment,  the  (-(jn- 
signees  had  not  received  a  liiil  of  lading, 
but  they  stipulated  to  indorse  and  deliver 
the  bill  (jf  lading  aa  soon  as  they  should 
receive  it,  and  that  they  did  It  accordingly. 
This  is  all  very  true,  but  it  does  not  an- 
swer the  oljjection.  It  shows  that  the  in- 
solvent house, in  making  their  assignment 
for  the  l)ene(it  of  creditors,  intended  to 
make  as  good  a  title  as  they  could  make 
to  these  goods,  with  the  rest  of  their  prop- 
erty, and  entered  Intostipulations  accord- 
ingly, 15ut  it  leaves  the  case  as  it  wau 
before,  that  the  assignees  took  aa  as- 
signees all  the  interest  which  the  assign- 
ors had  in  the  goods,  subject  to  all  claims 
of  lien  and  set-off,  and  not  as  indorsees 
of  11  bill  of  lading  in  the  usual  course  of 
trade,  or  as  purchasers,  advancing  money 
or  giving  credit  upon  the  faith  of  such  bill 
of  lading.  Indeed  the  consignors  had 
taken  effectual  care  to  prevent  thera  from 
thus  transferring  the  bill  of  lading  by  in- 
dorsement to  a  bona  fide  [jurchaser,  by 
enclosing  the  bill  of  lading  to  their  own 
agent,  to  be  delivered  to  the  consignees 
only  on  payment  made  or  security  given. 
Nor  can  the  jilaintiffs  be  considered  pur- 
chasers without  notice.  No  money  was 
paid  for  the  goods,  no  new  credit  given,  no 
new  dealings  had  upon  the  faith  of  this 
shipment  of  goods.  The  plaintiffs  knew 
that  the  consignees  were  insolvent;  this 
is  admitted,  and  indeed  the  whole  pro- 
ceedings were  founded  upon  that  assump- 

LAW  SALES— 49 


tion,  and  they  took  the  conveyance,  aa 
that  of  a  party  declared  to  be  Insolvent ; 
the.v  knew  that  the  consignors  were  de- 
scribed as  creditors,  in  the  same  instru- 
ment under  which  they  claimed:  they 
knew  that  by  the  general  mercantile  law, 
if  these  goods  had  been  shipped  on  credit, 
the  vendors  had  a  right  to  stop  tht-m  In 
transitu.  This  was  <|uite  sulMclent  to 
I)ut  them  fully  on  inquiring,  and  to  bind 
them  to  the  state  of  facts,  ns  it  should 
idtimately  turn  out.  The  effect  Is,  that 
they  took  all  the  title  which  the  assignora 
had,  and  no  more;  that  is,  a  title  to  the 
goods  subject  to  the  right  of  the  vendora 
to  stop  the  goods  in  transitu.  And  yet  It 
was  highly  proper  that  these  goods 
shouhl  be  included  in  the  assignment.  It 
might  turn  out,  that  there  was  a  balance 
due  from  Morrall  ik  Son,  and  that  tlie 
goods  were  not  shipped  on  credit,  within 
the  meaning  of  the  rule,  or  that  the  con- 
signors would  not  attempt  to  exercise 
their  right  of  stop|)age,  or  might  not  have 
an  oi)portunity  to  do  so,  or  n)lght  obtain 
security  for  the  purchase  money  In  some 
other  wa.v.  In  any  of  these  cases,  these 
goods  would  proijerly  have  gone  into  the 
general  fund,  provided  for  the  vendees' 
creditors.  I'ut  in  the  events  that  have 
happened,  it  appears,  that  the  vendora 
had  the  right  of  stoppage,  anil  did  sea- 
sonably and  legally  e.\ercl8e  It;  that  un- 
der the  circumstances.  It  was  er]ually 
available  against  the  aRsignees  as  against 
the  original  consignees;  and  therefore 
that  the  plaintiffs,  without  tendering  pay- 
ment for  the  price  o(  the  goods,  could  not 
take  them  out  of  the  custody  of  the  de- 
fendant, rightfully  holding  them  for  the 
consignors. 
Plaintiffs  nonsuit. 


STATE  OF  VKIIMOXT  v.  O'XEIL. 


771 


STATE  OF  VERMONT  v.  O'NEIL,  (two  cases.) 

SAME    V.   FOUR   JUGS    OF     INTOXICATINO 

LIQUOR,   (NATIONAL  EXPRESS 

CO.,  Claimant.) 

SAME  V.   SIXTY-EKiHT  JUGS    OF    INTOXI- 
CATING LIQUOR,  (NATIONAL  EX- 
PRESS CO.,  Claimant.) 

(3  Atl.  Rep.  5S6,  5S  Vt.  140.) 

Supreme  Court  of  Vermont.     Rutland.    Feb.  5, 
1S8C. 

ExcuptioiiH  from  Rutland  county. 

TlicHO  four  cnHt'H  were  licanl  to^ftliPr. 
The  tirHt  two  were  proceedin^tH,  com- 
menced before  a  justice  of  the  peace,  for 
the  conli.scation  of  intoxicating  li(|uorH 
Hhipped  from  several  towns  in  .\ew  Vorl< 
to  Rutland  parties,  who  had  ordered 
them,  and  were  marked  "C  O.  I).,"  and 
which  were  seized  at  tlie  otlices  of  the  Na- 
tional Expres.s  Company,  in  Hutlarx),  and 
in  Center  Rutland,  liy  the  slieriff  of  the 
county  and  one  of  his  deputies,  under  tlie 
authority  of  No.  4:5  of  the  Acts  of  IKSJ,  sec- 
tion 2  of  which  is  as  follows:  "In  all 
case.'i  where  now,  b.v  any  of  the  provisions 
of  said  chapter,  [Ki'J,  Rev.  Laws,]  an  offi- 
cer is  authorized  to  seize  iutoxicatint;  lirj- 
uors,  or  the  casks  or  vessels  containing 
the  same,  Ijv  virtue  of  a  warrant  therefor, 
he  may  seize  the  same  without  a  warrant, 
and  keep  the  liiiuors,  cask.s,  or  vessels  so 
seized  in  some  safe  place,  and  sliall  forth- 
with prticure  such  warrant,  and  he  shall 
thereuixin  make  return  of  his  dolnits  un- 
der sai<l  warrant  in  the  same  manner  >is 
he  would  have  done  had  the  issuinsi  of  the 
warrant  preceded  such  seizure."  The  Na- 
tional Express  Company  n|)pearcd  hefore 
the  justice  of  the  peace,  and  made  claim  to 
the  several  packages  of  li(iuor,  claiiuluK 
that  the  sales  in  question  were  made  in 
New  York,  where  such  sales  were  lawful, 
and  that  the  seizure  in  (jnestion  was  a 
viidation  of  section  s  of  tne  I'nited  Slates 
constitution;  and  several  other  claims, 
asapiiearin  the  opinion.  .Judirment  hav- 
ing been  rendered  against  the  express  com- 
pany, upon  their  claim  to  the  lifjuors,  and 
the  same  having  been  ordered  to  becontls- 
cated,  both  before  the  justice  and  the 
county  court,  the  express  company  took 
these  cases  to  this  court  for  <letermina- 
tion.  The  other  two  cases  were  criminal 
prosecutions  begun  liefore  a  justice  of  the 
peace, — one  for  keeping  intoxicating  li<|- 
uors  in  \'erni(jnt  with  intent  to  sell  and 
furnish  the  same  contrary  to  law.  and  the 
other  for  welling  and  furnishing  intoxicat- 
ing liipiors  in  \'eiiiiont  contrary  to  law. 
The  respondent  is  a  wholcsalt!  licpior 
dealer  in  Whiti'liall,  New  York.  The  sales 
comjilained  of  were  all  upon  orders  re- 
ceived by  OW'eil  from  parties  in  Rutland, 
and  sent  C.  O.  D.  to  such  parties  i;;  Rut- 
land through  the  National  Express  Com- 
pany, where  payment  therefor  was  made 
to  the  express  company.  The  respondent 
was  founil  guilty,  on  the  complaint  for 
keeping,  of  one  offense  as  of  second  con- 
viction, the  |)unisliment  for  which  is  S-h 
and  one  month's  imprisonment,  and,  on 
the  complaint  fur  selliug,  of  3U7  uffenses  as 


of  second  conviction,  the  punishment  for 
which  is  f<;.Ul),  (*:.'0  for  each  otlense,  I 
together  with  one  month's  imprison- 
ment; an<l,  in  both  tiises,  if  the  line  Is 
not  pail)  within  '24  hours,  the  respondent 
is  to  be  committed  to  the  house  of  cor- 
rection for  three  times  the  number  of  ilayB 
us  there  are  dollars  of  costs  and  fines, 
which  alternative  sentence  is  in  addition 
to  the  month's  imprisonment.  The  re- 
spondent claimed  that  the  judgment 
shoidd  be  only  as  of  the  lirst  con  victioii.  in 
which  case  the  line  is  only  ?ll)  for  each 
offense,  without  the  month's  imprison- 
ment, because  the  record  of  the  lirst  con- 
viction offereil  in  evidence  was  more  than 
three  years  before  tlio  commencement  of 
the  present  complaint,  and  the  statute 
provides  that  all  prosecutions  for  viola- 
tions of  the  liquor  la  w  must  beconimcnced 
within  three  years. 

J.  C.  Maker,  for  respondent.  I'rout  & 
Walker,  for  claimants.  \V.  C.  9unton  and 
L.  h.  Tliompsun,  for  the  .State. 

ROYCE,  Ch.  J.  The  first  and  most  Im- 
portant question  presented  by  these  cases, 
is  whether  or  not  the  intoxicating  liquors 
in  (juestion  were  (in  the  lirst  two  cases) 
in  contemplation  of  law  sold,  or  furnisheil, 
by  the  respondent  in  the  county  of  Rut- 
land and  state  <if  Vermont;  or  (in  the  last 
two  cases)  held  and  kept  for  the  |>urpose 
of  sale,  furnishing,  or  ilistribution  con- 
trary to  the  statute,  within  said  county 
and  state.  The  answer  de|iends  upon 
wliether  the  .National  Express  Company, 
by  which  some  of  said  liquors  were  deliv- 
ered to  the  consignees  thereof,  and  in 
whose  possession  the  remaintler  were 
found  and  seized  before  delivery,  was  in 
law  the  agent  of  the  vendors  or  of  the 
vendees.  If  tlie  purclinse  and  sale  of  the 
liquors  was  full.v  completed  In  the  state  of 
New  York,  so  that  upon  delivery  of  them 
to  the  exi)res8  L-oin[)any  for  transporta- 
tion the  title  vested  in  the  consignees,  as 
in  the  case  of  a  completed  and  uncondi- 
tional sale,  then  no  offense  against  the 
laws  of  this  state  has  b<>en  committed. 
If,  on  the  other  hand,  the  sale  by  its  terms 
could  only  become  complete  so  as  to  pass 
the  title  in  the  li()iiors  to  the  consignees 
upon  the  doing  of  some  act.  or  the  fulfill- 
ing of  some  condition  precedent  after  they 
had  reached  Rutland,  then  the  rulings  of 
the  county  coiirt  upon  the  <|uestion  of  the 
offense  were  correct. 

The  liquors  were  ordered  by  residents  of 
Vermont  from  dealers  doing  business  in 
the  state  of  .New  Y'ork.  who  selected  fiom 
their  stock  such  (luantitles  and  kinds  of 
goods  us  they  thought  propi-r  in  compli- 
ance with  the  terms  of  the  onlers,  put 
them  up  in  packages,  directed  them  to  the 
consignees,  and  delivered  them  to  the  ex- 
press comi)any  as  n  common  carrier  of 
goods  lor  transportation,  acnonpanled 
with  a  bill,  or  invoice,  for  cidlection.  The 
shiptuent  was  in  each  Instance,  which  it 
is  necessary  here  to  consiiler.  "C.  ().  !>."; 
and  the  cases  show  that  the  effivt  of  the 
transaction  was  adircctiou  by  lheshlpi)or 
to  the  express  company  not  to  deliver  the 
goods  to  the  consignees  except  upon  |>ay- 
meut  of  tlie  omount  specl'ied  In    the  C.  O. 


772 


STATE  or  VEP.MONT  v.  O'NEIL. 


D.  hills,  together  with  the  ehiirses  for  the 
transportation  of  the  packages  and  for 
tlie  return  of  the  money  paid  This  direc- 
tion vvas  understood  by  the  express  com- 
pany, which  received  the  shipments 
coupled  tlierewith. 

Wljotlier  cr  not,  and  when,  the  legal 
title  in  jiroperty  sold  passes  from  the  ven- 
dor to  the  vendee,  is  always  a  question  of 
tlie  intention  of  tlie  parties,  whicli  is  U)  be 
gatliered  frtjm  tlieir  aets,  and  all  tlie  facts 
and  circumstances  of  the  <-ase  taken  to- 
gether. In  order  that  the  title  may  pass, 
as  was  said  tjy  Morton,  J.,  in  Mason  v. 
Tliompson,  IS  Picli.  ;iOu:  "The  owner 
must  intend  to  part  with  liis  property, 
and  the  purcliaser  to  become  the  immedi- 
ate owner.  Tlieir  two  minds  must  meet 
on  tliis  point;  and  if  anything  remains  to 
be  (lone  before  either  assents,  it  maybe 
an  inchoate  contract,  but  it  is  not  a  per- 
fect sale."  The  authorities  seem  to  be 
uniform  upon  this  point;  and  the  acts  of 
tlie  parties  are  regariled  as  evidence  by 
wliich  tlie  court  or  jury  raa.y  ascertain  and 
determine  their  intent.  Itenj.  Sales,  ss. 
;!ll,  :519,  note  (c).  When  there  is  a  condi- 
tion precedent  attached  to  the  contract, 
tlie  title  in  the  projierty  does  not  pass  to 
the  vendee  until  nerformance  or  waiver  of 
the  condition,  even  tliough  there  be  an 
actual  delivery  of  possession.  Benj.  Sales, 
s.  321),  note  (d).  Tlie  Vermont  cases  to 
the  above  points  are  referred  to  in  Koli- 
erts's  Digest,  (JIO  et  se().,  and  need  not  be 
specially  reviewed  liere. 

In  the  eases  under  consi Jeratioii  the 
vendors  of  the  liiiuors  shipped  them  in  ac- 
cordance with  the  terms  of  the  orders  re- 
ceived, and  tiio  mode  of  shipment  was  as 
above  stated.  They  delivered  the  pack- 
ages of  liquors,  properly  addressed  to  the 
several  persons  ordering  the  same,  to  tlie 
express  company,  to  be  transported  by 
that  company  and  delivered  by  it  to  the 
consignees  upon  fultillraent  by  them  of  a 
spei-ihed  condition  precedent,  namely: 
payment  of  the  purcliase  price  and  trans- 
portation charges,  and  not  otherwise. 
Attached  to  the  very  body  of  the  contract, 
and  to  the  act  of  delivery  to  the  carrier, 
was  the  condition  of  payment  beforedeliv- 
ery  of  possessi'-.n  to  the  consignee.  With 
thisconditionunfultillcd  and  not  waived, it 
would  be  impossible  to  say  that  a  deliv- 
ery to  the  carrier  was  intended  by  the 
consignor  as  a  delivery  to  the  consignee, 
or  as  a  surrender  of  the  legal  title.  The 
goods  were  intrusted  to  the  carrier  to 
transport  to  the  idace  of  destination 
named,  there  to  present  them  for  accejit- 
ance  to  the  consignee,  and  if  he  accepted 
them  and  paid  the  accompanying  invoice 
and  the  transportation  charges, to  deliver 
them  to  him;  otherwise,  to  notify  the 
consignor  and  hold  them  subject  to  iiis  or- 
der. It  is  difficult  to  see  how  a  seller  could 
more  positively  and  unenuivocally express 
his  intention  not  to  relinquish  his  right 
or  property  or  [lossession  in  goods  until 
payment  of  the  purchase  price  than  bv 
this  method  of  shipment.  We  do  not 
think  the  case  is  distinguishable  in  princi- 
ple from  that  of  a  vendor  who  sends  his 
clerk  tir  agent  to  deliver  the  goods,  or  for- 
wards them  to,  or  makes  them  delivera- 
ble upon  the  order  of,  his   agent,  with   in- 


structions not  to  deliver  them  except  on 
payment  of  the  price,  or  performance  of 
some  otiier  speciHed  condition  precedent 
by  the  vendee.  The  vendors  made  the  ex- 
press company  their  agent  in  the  matter 
of  the  delivery  of  the  goods,  with  instruc- 
tions not  to  [lart  with  the  possessitin  of 
tlieiii  except  upon  prior  or  contemporane- 
ous receipt  of  the  price.  The  contract  of 
sale  therefore  remained  inchoate  or  exec- 
utory while  the  goods  were  in  transit,  or 
in  the  hands  of  the  express  company,  and 
could  only  become  executed  and  complete 
by  their  delivery  to  the  consignee.  There 
was  a  completed  executory  contract  of 
sale  in  New  York;  but  the  completed  sale 
was,  or  was  to  be,  in  this  state. 

The  aiitlioriti;^s  upon  the  above  points 
and  principles  are  so  numerous,  and  are  so 
fully  collated  in  the  brief  of  the  learned 
counsel  for  the  state,  and  in  the  text  and 
notes  of  2  Benj  Sales  (4  Am.  ed.i,  that  we 
refrain  troin  specific  references  in  support 
of  the  conclusions  at  wliicli  we  have  ar- 
rived. These  are  fully  supported  by  the 
decision  of  the  United  States  district  court 
in  Illiniiis  in  People  v.  Shriver,  ;il  Alb.  L. 
J.  l(i:!,  2'-'>  Fed.  Rep.  134,  a  case  involving 
precisely  the  same  question.  Treat,  J., 
says  in  the  opinion  :  "  In  the  caseof  li(jiior 
sliipped  by  the  defendant  to  Fairtield  liy 
express,  C.  O.  U.,  the  liquor  is  received  by 
the  express  company  at  Shawneeiown  as 
theagentof  theseller.and  not  as  theagent 
of  the  buyer,  and  on  its  reaching  Fairfield 
it  is  there  lield  by  the  company,  as  the 
agent  of  the  seller,  until  the  consignee 
comes  and  pays  the  money,  and  then  the 
coiii[)ani',  as  tlie  agent  of  the  seller,  ile- 
livers  the  liquor  to  the  puichaser.  In 
such  case  the  possession  of  the  express 
company  is  the  possession  of  the  seller, 
and  generally  the  right  of  property  re- 
mains in  the  seller  until  the  payment  of 
the  price.  An  order  from  a  person  in  Fair- 
field to  the  defendant  at  Shawneetown  for 
two  gallons  of  liquor,  to  be  shipped  to 
Fairfield,  (_'.  O.  D.,  a  mere  offer  by  the  per- 
son seniiing  such  order  to  purchase  two 
gallons  of  lirjuor  from  the  defendant,  and 
pa.v  him  for  it  when  he  delivers  it  to  him 
at  Fairfield,  and  a  sliipraent  liy  the  defend- 
ant according  to  such  order  is  practically 
the  same  as  if  the  defendant  had  himself 
taken  two  gallons  of  liqnor  from  his  store 
in  Shawneetown,  carried  it  in  person  to 
Fairfield,  and  there  delivered  it  to  the  pur- 
cliasHT,  and  received  the  price  of  it.  It 
would  be  different  if  the  order  from  Fair- 
Seld  to  the  defendant  was  a  simjile  order 
to  ship  two  galliiiis  of  liquor  by  express 
to  the  [lerson  ordering,  whether  such 
or<ler  was  accoirpanied  by  the  nionej'  or 
not.  The  moment  the  liijiior  under  such 
an  order  was  delivered  to  theexpresscom- 
pany  at  Shawneetown  it  would  become 
the  property  of  the  person  ordering,  and 
the  possession  of  the  express  company  at 
Shawneetown  would  be  the  possession  of 
tlie  pun-haser — the  sale  would  be  a  sale  at 
Shawneetown — arid  if  it  were  lost  or  de- 
stroyed in  transit  the  loss  would  fall  upon 
the  pur-chaser.  But  in  the  ease  at  bar  the 
shipping  of  theliqucjrto  Fairfield.  C.  O.  D., 
the  defendant  ma<]e  no  sale  at  Shawnee- 
town ;  the  right  of  property  I'emained  in 
himself,  and    the  right   of   possession,   as 


STATE  OF  VERMONT  r.  O'NEIL. 


77:1 


well  aH  the  nctujil  poHHeRHlon,  rcmulnerl  In 
liiin  tliroiiKli  lii>4  iiii'Hit-  ilni]  it  been  loHt 
or  (leHtroyed  in  IrniiKit  the  Iohh  would 
have  fallen  on  hlniseir.  lie  simply  acted 
ii|ii)n  the  request  of  the  piinha.ser.  and 
sent  the  li(|iior  to  Kairhi'ld  liy  IiIh  own 
flKent,  mill  there  effected  a  Hale  liy  receiv- 
inir  tli(^  money  anil    d.'li  vi-riiit;  the  liquor.  " 

II.  It  Ih  in«iHteil  on  the  part  of  the  clnini- 
ant  in  IhecuKeof  the  State  v.  (is  .Iuj^m.  &c., 
that  Hce.  2  of  No. -t.'i  of  the  .\cts  of  l.ss:.', 
under  which  the  liiiuoi-H  in  that  case  were 
Kei/.ed,  Ih  uiiconHtitutional.  Concedinn  the 
pointM  eontendeil  for  liy  the  learned  coun- 
sel for  tlie  claiinnnt,  tliat  there  Ik  a  well 
rccoKid'-fd  rinht  of  piopetty  in  inlo.xirat- 
ins'  liiiuiirH,  that  thej'  are  not  nialuni  in 
He,  and  that  their  use  Ih  not  liy  law  jiro- 
hihitiii  to  citizensof  this  Htate.  tlieHe  piop- 
ositioiiH  are  neverthelewH  clearly  wuliject  to 
the  nualification,  that  when  kept  and 
intended  for  unlawful  ukc,  hucIi  liquors 
fall  at  once  under  the  ban  of  the  law,  and 
become  subject  to  seizure  and  contiHca tion 
by  such  methods  as  are  provided  by  law 
in  conformity  with  the  couHtitution. 
That  into.xicatinjf  liquors,  when  once 
branded  with  thisuidawful  intent  on  the 
part  of  till-  owner  or  possessor,  become 
sulijcit  to  cnnliscation  by  the  f>overn- 
nieiil  :  and  that  the  methods  and  means  of 
their  seizure  and  conilemnalion  are  with- 
in the  poMce  powers  dele(;ated  lotheley;is- 
lature  by  Art.  .5,  (lart  1.  of  the  constitu- 
tion, is  too  well  settled  in  this  state  and 
elsewhere  to  require  extended  discussion. 
iSpaldiuK  V.  rreston.  L'l  \"t.  !l;  Stale  v. 
Oonlin,  L'7  Vt.  •.US;  Id.  rsi'.'..  :!.'";  State  v. 
Ootnstoik,  Id.  :V.:!:  (iill  v.  Tarkpr.  31  Vt. 
(ilO;  I'ott.  Dwarris,  c.  14;  Cooley  Con. 
Mm.  (led.)  714.  7L'7. 

This  section  tjives  the  officer  the  power 
to  seize  without  warrant  liquor  found 
"under  circumstances  warrantiuir  the  be- 
lief that  it  is  intended  for  sale  or  distribu- 
liiiii  "■  contrary  to  the  |)r(ivisionH  of  chap. 
I(i'.)  U.  L.  It  does  not  purport  to  confer 
the  power  of  search;  nor  does  anything 
appear  to  show  that  the  officer  assumed 
to  e.\-ercis(>  such  power  in  this  case.  It 
simply  provides  for  the  seizure,  without 
warr.-int  previously  issued,  of  soiiiethitijr 
which  the  law  has  declared  siiliject  to  s-i- 
zure  and  condemnation,  under  the  police 
power  delejiated  by  the  constitution,  as 
an  instrument  iiiteiided  by  the  owner  or 
]iiisse!.sor  fill-  a  use  unlawful  by  e.xpress 
statute,  and  dangerous  to  the  peace, 
health,  ami  y;ood  morals  of  the  communi- 
ty. That  the  article  in  itself  may  be  In- 
nocuous, may  bo  the  subject  of  lawful 
owiiersliip,  or  may  even  be  siisceiitible  of 
beneficial  use.  can  no  more  affect  the  ques- 
tion tlian  could  the  fact,  that  certain  tools 
were  susceptible  of  lawful  and  benelicial 
use  in  mechanics,  save  them  frmn  becom- 
iiijj  suliji'ct  to  seizure  and  conliscation,  if 
intenilid  hy  their  owner  or  possessor  for 
use  as  the  instruments  for  accomplishing 
a  contemplated  burglary;  i.r  theharmless 
charact'r  of  the  nielal  and  its  owner's 
ri^iht  of  priqierty  therein  protect  his 
ownership  when  fashioned  and  intended 
for  passinir  as  counterfeit  coin.  It  cannot 
lie  doubted  in  this  state,  since  the  case  of 
SpaldiiiR  v.  Preston,  lil  Vt.  it,  and  lins  not 
been   elsewhere,  so   far  as  we   are  aware, 


'  that  articles  or  instrunieiitalltlcs  once  liti- 
pressed  with  the  eharacteristii's  of  adap- 
tation and  intended  u.se  for  purposes  pr<i- 
hibited  by  law  and  coiitri.ry  to  public 
peace,  health,  or  morals,  are  subject  to 
suniiiiary  seizure  under  statutory  or  even 
general  police  ret'ulations.  That  the  liq- 
uors in  qiiesiion  were  intended  for  such 
use  has  been  determined  in  this  case  as  a 
(pieslion  of  fact  by  thetriliunal  designated 
by  law.  and  that  adjudication  Is  conclu- 
sive. 

The  scope  and  application  of  Art.  5, 
liart  I,  of  the  constitution  have  been  tie- 
lined  by  this  court  in  the  cases  above  re- 
ferred to,  and  in  In  re  I'owers.  '2'i  Vt.  2()5, 
which  hasever  since  been  rejrardeiJ  as  con- 
clusive against  such  application  of  that 
section  of  the  bill  of  riuhts  as  is  heie  con- 
tended for  bv  the  claimant.  See  (iill  v. 
Parker,  ;!l  Vt.CKl:  Stale  v.  Peterson.  41 
Vt.  .-,(14;  State  v.  Intox.  I-bv  .V,  Vt.  sj  In 
Massadiiisetts  a  statute  practically  idcii- 
tii-al  with  the  one  in  question  has  beeii 
held  not  to  contravene  a  similar  consti- 
tutional provision.  Jones  v.  Knot.  t> 
Oray,  4;!."i;  Mason  v.  I.athrop,  7  (irny.  :154. 
The  decisions  in  Maine  are  to  the  same 
effect.  State  v.  McCnnn.  .V.i  Me.  :iK;( ;  State 
V.  Howley,  (').">  Me.  Inn. 

HI.  Concerninjr  the  claim  that  sec.  S  of 
the  federal  constituticm.  conferrinK  upon 
conjiress  the  exclu-jlve  riiilit  to  re;rulate 
commerce  amonir  the  states,  has  applica- 
tion, it  is  sufficient  to  say  that  no  reRulfl- 
tion  of  or  interference  with  inteistate 
commerce  is  attempted.  If  an  express 
company,  or  any  other  carrier  or  person, 
natural  or  corporate,  has  in  possession 
within  this  state  an  article  in  itself  dan- 
frerous  to  the  com  muni  t.v.  or  an  art  iile  in- 
tended for  unlawful  or  criminal  use  with- 
in the  stale,  it  is  a  necessary  incident  of 
the  pidii'e  powers  of  the  state  that  such 
article  should  be  subject  to  seizuie  for  the 
[iiotection  of  t  he  community.  It  would 
certainly  be  a  strangle  perversion  of  laii- 
Kuaue  to  claim  that  if  this  express  com- 
pany were  to  hold  In  possession  within  this 
state  clothiiiK  infected  with  the  small- 
pox or  yellow  fever,  or  to(ds  with  which 
it  was  intended  to  oomniit  a  biinilary,  the 
state  fro^'eriiment  should  be  powerless  to 
protect  its  citizens  by  selzinK  and  ri-nder- 
int:  harmless  such  articles,  simply  because 
they  misht  have  been  brought  in  Iheordl- 
n.'iry  course  of  business  from  another 
state.  If  the  express  company  h.'is  In  pos- 
session within  Ihe  state  liqiinr,  with  In- 
tent to  make  unlawful  use  or  disposition 
of  it.  then  the  rifiht  to  seize  it  and  prevent 
such  unlawful  use  attaches.  If  it  were 
competent  for  persons  or  companies  to 
become  superior  to  state  lau  s  and  police 
reiiulntions,  and  to  override  and  defy 
them  under  theshield  of  the  federal  consti- 
tution simpl.v  by  means  of  condnctins  an 
interstate  traffic,  it  would  indeei!  be  a 
strange  and  deplorable  condition  of 
thin)j;s.  The  rijrht  of  the  states  to  regu- 
late the  trallic  in  intoxieatinii  linuors  has 
been  settled  by  the  I'liiled  States  supreme 
court  in  tlie  License  Cases.  .'>  How.  .'■)77. 

1\'.  Proof  of  the  formerconvlction  In  the 
rases  of  State  v.  O'Nell  was  properly  ad- 
mitteil,  notwithstanding  the  conviction 
a|>penred  to  have   l)eeii    more   than    three 


774 


STATE  OF  VERMONT  v.  O'NEIL. 


years  before  the  trial.  No  provision  of  the 
statute  requires  that  the  former  convic- 
tion must  liavp  been  within  three  years, 
an<i  we  have  no  authority  to  add  such  a 
provision  to  the  law,  as  it  is  plainly  and 
unambiguously  framed  l)y  the  legislature. 
The  reason  for  the  limitation  of  prosecu- 
tions for  the  offenses  charged  in  these 
cases  to  a  period  within  tliree  years  from 
the  time  of  commission,  as  for  all  similar 
limitations,  is  that  a  person  should  not 
be  called  upon  to  answer  to  a  legal  accu 
sation  after  such  a  long  time  has  elapsed 
as  would,  in  the  estimation  of  the  law, 
make  it  dillicult  or  impossible,  by  reason 
of  the  death  or  removal  of  witnesses,  the 
loss  or  destruction  of  evidence,  or  the  va- 
rious embarrassments  likely  to  arise  from 
a  considerable  lapse  of  time,  for  him  to 
establish  his  innocence.  This  reason  has 
no  application  to  a  case  where  the  only 
proof  that  can  be  used  on  the  one  side  or 
the  other  is  matter  of  record.  We  should 
therefore  have  no  justification,  even  if  we 
deemed  it  within  the  scope  of  our  power 
and  duty,  for  making  applications  of  a 
rule  of  limitation  by  analogy  in  these 
cases. 

V.  The  constitutional  inhibition  of  cruel 
and  unusual  punishments,  or  excessive 
fines  or  bail,  has  no  application.  The 
punishment  imposed  l)y  statute  for  the 
offense  with  which  the  respondent,  O'Neil, 
is  charged,  cannot  be  said  to  be  excessive 
or  oppressive.  If  he  has  subjected  himself 
to  a  severe  penalty,  it  is  simply  because 
he    has   committed    a    great  many  such 


offences.  It  would  scarcely  be  competent 
for  a  person  to  assail  the  constitutional- 
ity of  tlie  statute  prescribing  a  punish- 
ment for  burglary,  on  the  ground  that  he 
had  conuuitted  so  many  burglaries  that, 
if  i)unishment  for  each  were  inflicted  on 
him  lie  might  be  l<ept  in  prison  for  life. 
The  mere  fact  that  cumulative  punishments 
maybe  imposed  for  distinct  offences  in  the 
same  prosecution  is  not  material  upon 
this  question.  If  the  penalty  were  unrea- 
sonably severe  for  a  single  offence,  the  con- 
stitutional question  might  be  urged;  but 
here  tlie  unreasonableness  is  only  in  the 
number  of  offences  which  the  respondent 
has  committed. 

The  iuevital)le  deduction  from  what  has 
been  said  under  tlie  first  point  is,  that  the 
respondent,  O'Neil,  by  what  he  did  in  re- 
spect of  the  transactions  in  question,  made 
the  express  company  his  agent;  and  as 
what  was  done  by  such  agent  in  the  exe- 
cution of  the  autliority  and  instructions 
directly  given  by  him  committed  offences 
against  the  statute,  O'Neil  must  beheld 
responsible.  That  he  was  innocent  of 
any  purpose  or  intent  to  break  the  law, 
and  was  unaware  that  what  he  did  was 
contrary  to  la  w,  cannot  avail  him  in  de- 
fence.    State  V.  Comings,  28  Vt.  508. 

The  result  is  that  in  the  cases  of  the 
State  V.  O'Neil,  numbers  27  and  28,  the  re- 
spondent takes  nothing  by  his  exceptions; 
and  in  the  cases  of  the  State  v.  Intoxicat- 
ing Liquor,  National  Express  Company, 
claimant,  numbers  25  and  26,  the  judg- 
ments are  affirmed. 


8T0LLENWERCK  v.  TIIACHICa. 


777 


STOLLENWERCK  et  al.  v.  THACHER  et  aL 

(115  Mass.  2^.) 

Supreme  Judicial  Court  of  Massachusetts.     Suf- 
folk.    June  18.  1S74. 

Tort  for  the  coiiverhion  of  189  bnlcs  of 
cotton.  At  the  triul,  Itefore  Morton,  J., 
the  jury  were  dircctccl  to  (ind  ii  verdict  for 
the  plaiiitiff.s,  and  tho  euHe  \va»  rc[)orted 
for  tile  consideration  of  the  full  court. 

S.  I'.artlettand  1).  Thaxter.  f(jr  plaintiffs. 
H.  VV.  Paine  and  U.  I).  Smith,  for  defend- 
antH. 

GRAY,  C.  J.  Thi.s  in  an  action  of  tort 
for  the  conversion  of  a  number  of  hales  of 
cotton.  A  verdict  has  been  ordered  for 
the  plaintiffs,  and  the  case  reserved  for 
till!  determination  of  the  full  court  upon  a 
report  containing  an  abstract  of  the  evi- 
dence Riven  at  the  trial,  and  a  number  of 
letters  and  documents.  But  the  facts 
material  to  the  decision,  assuming  all  the 
controverted  ones  to  be  according  to  the 
testimony  introduced  by  the  defendants, 
are  not  many;  and  a  l)net  statement  of 
them  will  tend  greatly  to  narrow  the  dis- 
cussion of  the  principles  of  law  by  which 
the  case  is  governe*!. 

The  plaintiffs,  being  buyers  of  cotton  in 
Mobile,  made  an  arrangement  with  .Jo- 
seph I.  Caker,  a  cotton  broker  in  I'.oston, 
by  which  they  agreed  to  pay  him.  upon 
such  orders  on  them  as  he  should  obtain 
from  lii.s  custonii^rs  here,  fifty  cents  a  bale, 
out  of  their  own  commission  of  one  and  a 
half  per  cent.,  furnish  him  witli  types  of 
their  classification  of  cotton,  and  keep 
him  advised  at  their  own  expense  of  the 
condition  of  the  cotton  market  in  iMobile; 
he  agreed  to  procure  and  transmit  the 
orders,  and  inform  his  customers  of  their 
acceptance  or  rejection;  and  the  invoices 
were  to  be  sent  by  the  plaintiffs  to,  and 
the  drafts  for  the  price  drawn  upon,  the 
customers,  and  the  bills  of  lading  at- 
tached to  the  drafts. 

In  pursuance  of  an  order  given  liira  by 
(jorhain  (Jrn.v  &  Company,  linker  tele- 
graphed to  the  plaintiffs  to  buy  for  them 
two  hundred  bales  of  cotton.  The  plain- 
tiffs replied,  refusing  to  negotiate  on  any 
other  basis  than  that  the  bill  of  lading 
should  be  att;u-lie<l  to  the  draft.  They 
bought  the  cotton  in  .Mobile,  drew  a  bill 
of  exchange  on  liray  &  Company  a;;ainst 
the  cotton,  took  the  bill  of  lading  in  their 
own  name,  indorsed  it  in  l)lank,  attached 
it  to  the  bill  of  exchange,  procured  th_>  lat- 
ter to  be  discounted  at  a  bank  in  Moliile, 
informed  Baker  of  what  they  had  done, 
an<l  instructed  him,  on  receiving  the  draft 
and  bill  of  lading,  to  bold  the  bill  of  lad- 
ing until  the  draft  was  paid.  Baker  by 
telegram  and  letter  assented  to  all  this. 
The  in  voice  sent  by  the  plaintiffs  totJray  & 
Coiu|>any  showed  that  the  cotton  was 
consigned  to  the  i)laintlffs'  order.  The 
Mobile  Bank  transmitted  the  draft,  with 
the  bill  of  lading  attache<l.  to  a  bank  in 
Boston,  which  presented  the  draft  to  (iray 
&  Company  for  acceptance.  Upon  such 
presentment,  (Iray  &  Company  asked  for 
the  bill  of  lading,  and  were  told  that  Ba- 
ker w;.s  to  receive  it.  (Jrny  iVc  Company 
then   accepted    the  draft,  the   bank  deliv- 


ered the  bill  of  lading  to  Baker,  and  he  att 
erwards  delivered  it  to  (iray  and  Compa- 
nj',  who  obtained  the  cotton  from  the  car- 
riers, gave  them  a  check  for  the  amount  of 
the  freight  from  Molille  to  Boston,  and 
pledged  the  cottim  and  dell  vcreil  the  1)111  of 
lading  to  the  rlefendants  as  security  for 
the  payment  of  advances  on  the  cotton. 
Gray  testified  that  he  accepted  the  draft 
upon  Baker's  assurance  that  he  would 
hand  him  the  bill  of  lading  as  soon  as  It 
came  to  Baker's  possession,  that  Baker 
shortly  afterwards  delivered  to  him  the 
bill  of  lading  unconditionally,  and  that  he 
transferred  the  cotton  to  the  defendanta 
believing  that  lie  owned  it;  and  his  testi- 
mony though  contra<licted  by  Baker's, 
must  lie  assutned  to  be  true  for  the  pur- 
pose of  deciding  whether  a  verdict  was 
rightly  ordered  for  the  plaintiffs. 

Baker  and  the  plaintiffs  were  not  part- 
ners as  between  t/icmselves.  and  (Jray  & 
Company  did  not  deal  with  Baker  as  a 
partner  of  the  i)laintiffs.  His  relation  to 
the  i)laiiitirfs  was  that  of  a  tjroker  only. 
He  looked  to  them,  and  not  to  the  cott<jn, 
for  tlie  payment  of  his  commiHsion.  The 
case  is  not  within  tlie  (Jen.  .'^ts.  (•..'>4.*  Ba- 
ker was  not  a  fiictor.  or  a  general  agent 
intrusted  with  the  goods  for  the  puriKise 
of  sale;  but  a  special  agent,  with  p<jHitlve 
and  restricted  instructions  to  receive  the 
liill  of  lading  on  the  acceptance  of  the 
draft,  hold  the  bill  of  lading  and  the  cot- 
ton until  the  draft  was  paid,  and  then  de- 
liver them  to  Gray  &  Comiiany.  He  had 
no  right  of  possession  of  the  bill  of  lading 
or  the  cotton  for  any  other  purpose,  and 
no  title  in  or  lien  on  the  cotton.  Tins  is 
not  a  case  of  8topi)age  in  transitu.  Gray 
i^c  ("ompany  were  not  naineil  In  the  l)ill  of 
lading  as  consignees  of  the  c<itton.  and 
the  plaintiffs  ha ve  never  been  divested  of 
their  ])roperty  in  the  cotton  as  agnlnst 
Gray  &  Con)i)any  or  any  persons  claiming 
under  them. 

The  nuraeroua  case.4  cited  at  the  bar 
diffi'r  in  their  circumstances  rather  than 
in  the  statement  of  principles.  \  hill  of 
lading,  even  when  in  terms  running  to 
order  or  assigns,  is  not  iicgotiable,  like  a 
l)ill  of  exchange,  but  a  symbol  or  repre- 
sentative of  tlic  goods  themselves;  and 
the  rights  arising  out  of  the  transfer  of  a 
bill  of  laiiing  correspond,  not  to  those 
arising  out  of  the  indorsement  of  a  nego- 
tiable promise  for  the  payment  of  money, 
but  to  those  arising  out  of  a  delivery  of 
the  property  itself  under  sin. liar  circuui- 
stances.  If  the  1)111  of  lading  is  once  as- 
signed or  indorsed  generally  l)y  the  orig- 
inal holder,  upon  or  with  a  view  to  a  sale 
of  the  property,  any  subsei)uent  transfer 
thereof  to  a  bona  tide  purchi\ser  may  In- 
deed give  him  a  good  title  as  against  the 
original  owner.  But  so  long  as  the  bill 
of  la<ling  remains  in  the  hnnils  of  the  orig- 
inal party,  or  of  an  agent  intrusted  with 
It  for  a  special    purpose,  and    not   author- 

'Gon.  Sts.  c.  54,  §  2,  proviiie  that,  "Every  factor 
or  other  agent  intrusted  with  the  pos>ci«»ion  of 
merchandise,  or  a  bill  of  Inding  consicnlnc  mer- 
chandise to  him.  for  the  purpose  of  siilo.  shall  be 
deemed  to  bo  the  true  owner  Ihoreof  so  far  as  to 
give  validity  to  any  bona  tide  contract  mado  by 
him  with  any  other  jwrson  for  the  sale  of  the  whole 
or  any  part  of  such  merchandise, " 


7V8 


STOLLENWERCK  v.  THACHER. 


izptl  to  sell  or  pledge  the  goods,  a  person 
who  f;et8  i)ossession  of  It  witliout  the  au- 
thority of  the  owner,  althotish  with  the 
assent  of  tlie  a(?ent,  ac'uiires  no  title  as 
against  the  principal.  National  Bank  of 
Green  Bav  v.  Dearborn,  115  Mass.  219. 
(Jurncy  vl  Behrend,  3  E.  &  B.  622.  632. 
Pease  V.  Gloaliec,  L.  H.  1  P.  C.  219,  228. 

In  tlie  present  case,  Baker,  being  a  spe- 
cial agent  authorized  to  deliver  the  bill  of 
lading  only  up.on  payment  of  the  bill  of 
exchange  drawn  against  the  goods  and 
attached  to  the  bill  of  lading,  could  not 
bind  his  principals  by  a  delivery  made 
withont  such  payment.  To  hold  other- 
wise would  be  to  allow  a  person,  intrust- 
ed with  goods  merely  for  the  purpose  of 
oollecling  the  price  and  then  delivering 
then),  to  sell  them  on  credit.  The  author- 
ity of  Baker,  being  special  and  limited, 
could  not  be  enlarged  by  his  own  declara- 
tions.    Mus.sey  v.  Beecher,  3  (Jush.  .'ill. 

It  follows  that  Gray  &  Corai)any,  not 
having  paid  the  draft,  nor  acquired  pos- 
session of  the  bill  of  lading  with  the  plain- 
tiffs' consent,  had  no  property  in  the 
goods,  and  could  convey  none  to  the  de- 
fendants, so  as  to  defeat  the  plaintiffs' ti- 
tle. The  plaintiffs  are  thereforeeutitled  to 
recover. 

This  is  not  an  action  in  the  nature  of  as- 
sumpsit for   the  proceeds  of  a  sale  of  the 


propert.v,  in  which  the  plaintiffs  might  be 
deemed  to  have  waived  any  tort,  and  be 
obliged  to  submit  to  a  deduction  of  the 
expenses  of  the  sale  by  which  such  pro- 
ceeds hud  been  obtained.  It  is  an  action 
in  tlie  nature  of  trover  for  the  conversion 
of  the  goods,  in  which  tlie  jjlain tiffs  are 
entitled  to  recover  their  market  value  at 
the  time  of  the  conversion  by  the  defend- 
ants, and  are  not  obliged  to  allow  a  com- 
mission to  Gray  &  Company  for  doing  an 
act  which  is  not  shown  to  have  been  for 
the  interest  or  according  to  the  intent  of 
the  plaintiffs.  Bartlett  v.  Bramliall,  3 
Gray,  257. 

But  the  amount  paid  by  Gray  &  Compa- 
ny to  discharge  the  lien  which  the  carriers 
had  against  the  jdain tiffs  for  the  freight 
on  the  cotton  enured  to  the  benefit  of  the 
plaintiffs,  and  should  he  deducted  from 
the  market  value  of  the  goods.  Adams 
V.  O'Connor.  100  Mass.  515.  Whitney  v. 
Beckfonl,  105  Mass.  267.  That  amount 
must  therefore,  unless  the  parties  agree 
upon  it,  he  ascertained  by  an  assessor, 
pursuant  to  the  terms  of  the  report,  the 
verdict  amended  accordingly,  and 

.ludgment  rendered  thereon  for  the  plain- 
tiffs. 

WELLS,  COLT,  and  DEVENS,  J.T.,  ab- 
sent. 


STUAUS  c.  WESSEL. 


781 


BTRAU8  et  al.  v.  WESSEL  et  al. 

(30  Ohio  St.  211.) 

Supreme  Court  Commission  of  Ohio.    December 
Term,  1S70. 

Error  to  superior  court  of  Cincinnuti. 
H.  H.  WeHHcl,  doiiiir  buHiiiewH  in  <-'incin- 
iiati  as  H.  II.  Weasel  &  Co.,  aOvunced  to 
Steplieiis  &  Bro.,  pork  itackers  in  Jndiann, 
$.>,UOU,  under  uf;reeuient  tliat  tliu  latttr 
would  sliip  to  tliem  all  tliepork  they  would 
cut  during  the  season  to  be  8(dd  by  H.  H. 
Wessel  &  Co.  on  coinniission,  the  proceeds, 
after  paying  freight  and  commissions,  to 
be  applied  on  the  indtbtedne.ss,  and  any 
balance  to  be  pain  to  Stephens  &  Bro.  ! 
Stephens  &  Bro.  made  several  shi|)nients! 
to  I!.  H.  Wessel  &  Co.,  but  without  send- 
ing bills  of  lading.  The  consiKuee,  beinj;; 
well  known,  obtained  the  goods  on  their 
arrival  In  Cincinnati.  March  24,  1S70, 
Steidiens  &  Bro.  made  a  shipment  to  II. 
H.  Wessel  &  Co.,  retaininj^  the  bill  of  lad- 
ing, but  sendinR  the  folio  wing  letter  of 
advice,  which  was  received  March  2'!,  1S70. 
"Shoals.  Ind.,  .March  24,  INTO.  Messrs. 
H.  H.  Wessel  Co. — Gents:  Shipped  to-day 
car  No.  761 : 

7  tierces  lard,  No.  1 2,164 

1  bbl.  grease -00 

4  bbls.  cracklings 913 

353  hoKs'  heads,  ( with  the  fat) 1.970 

14:1  smoked  jowls 74.5 

rJO  bacon  hams 1,413 

183  hogs' heads,  (skinned) l,4tW 

12S  bacon  shoulders 1,S05 

"Tlie  balance  of  meat  we  will  ship  when- 
ever you  order.  We  think  it  best  to  holil 
the  fard.  I  send  you  two  kinds  of  hogs' 
heads,— one  with  fat  on, tlieothcrskinned, 
which  notice.  We  deliver  you  this  load 
on  our  indebtedness.  Do  tlic  best  you 
can.     Yours  truly.  Stephens  &  Brother.  " 

On  March  2.S,  1S7U,  while  in  the  posses- 
sion <if  the  railroad  company  at  Cincin- 
nati, it  was  attached  by  . I.  1'.  Straus  & 
Co.  on  a  claim  aBainst  Stei)hens  &  Bro. 
H.  H.  Wessi'l  paid  the  freight  bill  in  the 
usual  way,  and  brought  replevin  against 
the  sheriff  and  .J.  P.  Straus  &  Co..  an<l  re- 
covered judgment,  and  defendants  bring 
error. 

Stallo  &  Kittrcdge,  for  plaintiffs  in  er- 
ror. John  Johnson,  for  defendant  in  er- 
ror. 

SCOTT,  J.  It  is  clear  that  the  rights 
and  interests  of  the  iiiaintifJs  in  error,  in 
the  property  which  they,  as  creditors  of 
Stephens  &  Bro.,  caused  to  be  attai-hed. 
can  be  no  greater  than  those  of  their  al- 
leged debtors,  Stei)h"'ns  A:  Bro.  They 
could  attach  only  the  interest  of  their 
debtors,  in  the  prop"rty.  and  in  this  con- 
troversy must  stand  in  theirshoes.  Now, 
for  whom  was  the  (xirk  in  question  held 
by  the  carrier  at  the  time  of  the  levy  of  the 
attachment?  It  had  bc<'n  delivered  by 
Stephens  &  Bro.,  to  the  carrier  for  trans- 
portation to  Cincinnati  and  delivery  to 
the  consignee,  11.  H.  Wessel  &  Co.  By  the 
express  terms  of  their  bill  of  liiding.it  was 
the  duty  of  the  carrier  to  deliver  it  oidy 
to  the  consignee  named  therein.  By  the 
invoice  and    letter   of   advice  sent  to  the 


coDHlgnees,  iiunu'diately  before  the  Rhlp- 
mcnt,  it  is  very  clear  that  the  conBlgnurs 
had  a|)propriated  the  pork  shipiied  and 
the  net  proceeds  of  its  sale  to  the  (lartial 
discharge  of  their  indebtedness  to  the  con- 
signees, for  cash  previously  advanced. 
They  expressly  say:  "We  deliver  you  this 
load  on  out  indebiednesB." 

The  consignors  of  this  shipment  had  not 
only  the  right,  but,  under  their  contract 
with  the  consignees,  it  was  their  duty  ao 
to  a|)propriate  it. 

The  relation  of  the  parties  to  this  Hhl|)- 
ment  differed  ;n  no  substantial  respi-ct 
from  that  of  the  case  in  *'hich  goods  are 
shipped  by  a  vendor  to  u  purchaser,  who 
has  jjreviously  ordered  and  paid  for 
them.  And  iu  such  n  case  it  is  wellsettled 
that  the  delivery  of  goods  to  a  common 
carrier  for  conveyance  to  the  purchaser  is 
equivalent  to  a  delivery  to  the  purchaser 
himself.  The  carrier  is,  in  that  case,  in 
contemplation  of  law,  tlie  bailee  of  the 
person  to  whom, not  by  whom,  thegoorls 
are  sent;  the  latter,  in  employing  the  car- 
rier, being  considered  as  the  agent  of  the 
f.irmer  for  that  purpose.  Ueuj.  on  Sales, 
sec.  J81,  and  the  numerous  authorities 
there  cited.  By  the  terms  of  the  letter  of 
advice,  in  this  case,  there  can  be  no  doubt 
that  Stephens  &  Bro.,  by  delivering  the 
pork  to  the  carrier,  intended  thereby  t<i 
invest  the  consignees,  Wessel  &  Co.,  with 
the  full  and  rightful  pcissession.  and  the 
absolute  jus  disponendi  of  the  property, 
for  the  purposes  of  their  contract. 

They  intencU'cl  to  retain  no  interest  even 
in  tlie  proceeds  of  its  sale,  other  than  the 
right  to  have  the  net  amount  applied  In 
partial  satisfaction  oi  their  indebtedness 
to  the  consignees.  .\nd  to  this  intention 
a  controlling  effect  must  l)e  given.  Kro- 
erv's  Sons  v.  Irving  National  Bank,  25 
Ohio  St.  oGO. 

It  is  claimed,  however,  by  rounsel  for 
plaintiff  in  error,  that.  Irrespective  of  the 
intention  of  Stei)hens  &  Bro  .in  their  slnp- 
inent  of  the  pork,  by  taking  the  bill  of 
lading  in  their  own  name,  and  retaining 
its  pcssessicn,  they  rescrveil  forthemselves 
ttie  power  to  dispose  of  the  |iroperty,  and 
vest  the  title  thereto  in  any  bona  tide  pur- 
chaser by  a  simple  delivery  of  Hie  bill  of 
lading,  and  that  they,  therefore,  remained 
the  owners  of  the  property,  in  contem|ila- 
tion  of  law,  until  It  came  to  the  actual 
possession  of  the  consignees.  But  we 
think  this  position  can  not  be  maintained. 
A  bill  of  lading,  though  transferable  by 
delivery,  like  commercial  pai)er.  "is  unlike 
commercial  paiier  in  this— theassigneecan 
not  ac(|uire  a  better  title  to  the  property 
thus  symbolically  delivered,  than  his  as- 
signor" had  at  the  time  of  assignment. " 
Kmery's  Sons  v.  Irving  National  Hnnk, 
supra',    p.  y(i>>;   BenJ.  t>ii    Sales,  sec.  StM. 

Hence,  as  Ste|d)ens  &  Bni..  uniler  the 
circuuistnnces  of  this  case,  had  parted 
with  all  right  of  control  over  the  proper- 
ty in  (jui-stion,  they  could  confer  no  such 
right  on  anolher  by  n  trniisfer  of  the  bill 
of  lading. 

We  think  the  evidence  in  the  rase  shows 
tlirit  at  the  time  of  the  levy  of  the  attach- 
ment, the  property  in  (juestlon  was  con- 
structively in    the  possession   of  delendant 


782 


STRAUS  V.  WESSEL. 


in   error,  who  had  the  full  and  sole  power 
of  disposition   over  it,  and  the  right  to  re- 
tain the  proceeds  of  its  sale. 
The  authorities  cited  by  counsel  for  de- 


fendant in  error  fully  sustain  these  views, 
and  justify  us  in  saying  that  the  judgment 
of  the  court  below  must  be  affirmed. 
Judgment  affirmed. 


STUAKT  V.  WILKINS. 


785 


STUART  V.  WILKINS. 

(1  Doug.  18.) 

Court  of  King's  Bench.    Michaelmas  Term,  177S. 

The  two  first  counts  in  the  dccliirntioii 
in  tliis  CHBo  were  nH  tolloWH:—"  David 
Stuart  cuniplaluK  (if  JanieH  WilkinH  lieinj;, 
&c.  For  tliat  whrreaH  tlic  said  .lami'.'*, 
on  tlic  (ii-Ht  day  nf  Feb i' nary,  in  the  year 
of  our  I-oril  177s,  at  llatlield,  in  the  coun- 
ty of  Ilertfurd,  offered  to  Hell  to  t he  Haid 
David,  u  certain  niaro  of  him  the  naid 
JanicH,  and  wliereupon  afierwarilH,  to 
wit,  on  tlie  (lay  and  year  aforenaid.  at 
Hatfield  aforesaid,  in  the  touniy  afore- 
Haid,  in  consideration  that  tlietsaiil  David, 
at  tlie  Hpecinl  instance  and  re(|neHt  of  the 
said  JanieH,  would  liuy  of  liini  the  waid 
.JaniCK,  the  said  mare,  at  and  for  n  certain 
lar;j;e  priceor  Kuni,  to  wit,  tlie  price  or  sum 
of  j;:!l.  IOh.  of  lawful  money  of  (ircat  I'.rit- 
ain,  to  he  paid  by  tlicHaid  I)a\  id.  to  tlicKaid 
.lanjCN,  when  he  the  said  David  HJiould  he 
thereiint(j  afterwards  rciiuested;  In-  the 
said  .lames  undert(jok, and  then  and  there 
faithfully  promised  the  sain  David,  that 
the  said  mare  was  sound,  and  the  said 
])avid  in  fact  saith,  that  he,  conlidint;  in 
the  said  i)r(in)ise  and  nndertakinK  of  ilie 
Haid  .lames,  ko  hy  him  made  a8  aforesaid, 
afterwards,  to  wit,  on  the  same  dn.v  and 
.vear  aforesaid,  at  llatlield  aforesaid,  in 
the  county  aforesniil,  at  the  sfiecial  in- 
stance and  reiiuest  of  the  said  .lames,  did 
buy  of  tlie  said  .James  the  said  mare,  at 
and  for  the  said  price  or  ■sum  oi  i;;Jl  lOs. 
and  did  then  and  there  pay  to  tin;  said 
.lames  the  sum  of  t.'.")  .">s.  part  of  the  said 
sum  of  iljl  Ids.  an<l  <lid  then  and  there  un- 
dertake and  faitlifully  promise  the  said 
.lames  to  pay  him  the  further  sum  of  t'i 
."is.  residue  of  tlie  said  sum  of  VM  Ihs.  when 
he  the  said  David  should  be  thereunto  aft- 
erwards reiiiiested.  Yet  the  ssiid  .lames, 
not  reRardinsj  his  said  promise  and  nuder- 
tnkint;  so  hy  him  made  as  aforesaid,  hut 
eontrivinK,  and  fraudnlently  intending  to 
injure  the  said  Daviil  in  this  tiehiilf,  did 
not  regard  his  said  piomise  and  undertak- 
ing so  l(y  him  made  asaforesaid,  hutcraft- 
ily  and  snbtilely  deceived  the  said  David 
in  this,  that  the  said  mare,  at  the  time  of 
the  niakini:  the  said  promise  and  iinder- 
takiiiK  of  Ihe  sni<l  .lan;es,  was  not  sound, 
but,  on  tlie  contrary  thereof,  was  un- 
sound, and  was  atllirlecl  with  a  certain 
mnliidy  or  disease,  called  the  windyialls, 
to  wit,  at  llatlield  aforesaid,  in  the  coun- 
ty aforesaid;  whereby  the  said  mare  then 
and  there  became,  and  Is  of  no  use  or 
viiUh!  to  the  said  David.— .\nd  whereas 
also  the  said  .lames,  afterw  arils,  to  wit, 
the  same  day  and  year  aloresaid,  at  llat- 
lield aforesaid.  In  the  county  aforesaid,  in 
consideration  that  the  said  David,  at  the 
like  instance  and  reiiuest  of  the  said 
James,  boufiht  of  him  the  said  James,  a 
certain  other  mare  of  him  the  said  James, 
at  and  for  a  certain  other  larire  price  or 
sum,  lo  wit,  the  sum  of  .CM  10s.  of  like 
lawful  money,  and  had  then  and  there 
paid  to  the  said  James,  the  sum  of  V2T>  ."is. 
in  part  of  the  said  last  mentioned  sum  of 
.V.n  10s.  and  had  then  and  there  undertak- 
en and  promised  to  pay  to  the  said  James 
LAW  SALKS — 50 


the  further  sum  of  £(>  5s.  residue  of  the  Hald 
last  mentioned  sum  ot  £:)!  lUs.  when  he  the 
said  David  should  be  thereunto  afterward* 
i'e(|uested,  he  the  said  .lames  undertook, 
and  then  and  there  faithfully  promised 
him  the  saiil  David,  that  the  said  last 
nientioned  mare  was  sound.— Yet  the  said 
James,  not  reKardinj;  Ids  said  last  men- 
tioned promise  and  undertakinuso  by  him 
made  as  lant  aforesaii!,  but  contriving 
and  fraudulently  intcndliiK  to  injure  the 
said  David  in  this  behalf,  diil  not  retiard 
his  said  promise  and  undertaking  ho  liy 
him  made  as  last  aforesaid,  but  craltily 
and  subtilely  deceived  the  said  Dutiil  In 
this,  that  the  said  last  inentluiii'd  mare,  at 
the  time  of  the  mnkiiiK  the  said  last  inen- 
tioudl  promise  and  uudertakiim  of  the 
sail!  .James,  was  not  sound,  but  then  was 
unsound,  whereby  the  said  last  mentioned 
mare  became,  and  is  of  no  use  or  value  to 
thesaid  David." — To  these  wcie  add-d  a 
count  for  money  laid  out  and  expenih-d. 
and  an(jther  for  money  had  and  received. 
— The  cause  was  fiiecl  at  the  assizes  at 
Hertford,  before  Lord  Manslield.  and  a 
verdict  found  for  the  pluintift;  but  theev- 
idencetti%en  beinKof  an  express  warranty, 
and  a  doubt  bein^  raised,  whetrier,  in  such 
a  case,  this  was  a  proper  f(irm  of  action, 
the  verdict  was  taken  subject  to  the  olilu- 
i(ni  of  tlie  court  on  that  (luestion. 

Cpon  a  motion  for  settimr  aside  the  ver- 
dict, anil  entering  a  nonsuit.  Lord  .Mans- 
tiild  said,  that  it  had  been  su«ueste(l,  that 
the  form  of  this  deiliiration  arose  from  a 
determination  of  his  at  the  same  place 
about  twentv  years  niio,  but  that,  he 
said,  was  a  case  of  a  clear  fraud,  and  was 
declared  on  a."  a  fraud. 

Cause  was  now  shewn  ajjainst  makiiiK 
the  rule  alisolute. 

Kenipe,  Serjeant,  and  MorKnn.  for  de- 
feudnot. 

Lord  M.\.VSF1ELD,— The  declaration 
struck  me  as  particular, in  depurtinj:  from 
the  old  rule  of  deelnrinK  e.xpiissly  on  the 
warranty.  A  warranty  extends  to  all 
faults  known  and  unknown  to  the  seller. 
Selling  for  a  sound  iirice  without  warran- 
ty nin.v  lie  a  jj;ii>und  for  an  assumpsit,  buS, 
in  such  a  case,  it  oujiht  tn  be  laid  that  the 
defendant  knew  of  the  unsoundness,  [n] 
I  left  it  to  the  jury  as  on  a  warranty,  sub- 
ject to  the  opinion  of  the  court,  whether 
a  nonsuit  should  not  be  entered.  I  aiii 
told  bv  the  learned  judjies  on  my  left  hand 
(.\SIIIIFUST,  and  lULLKIt,  Justices,) 
that  this  sort  ot  declaration,  wherea  war- 
ranty is  to  be  proved,  has  been  practised 
for  twenty  years,  and  that  it  Is  made  use 
of  with  a  View  to  let  in  both  proofs,  if  nec- 
essar.v. 

ASimrUST,  Justice,— Whatever  may 
have  been  the  old  form.  1  lielleve  It  liaa 
been  lonn  settled  that  this  form  of  action 
is  rlitlit:  and.  havini:  lieen  lonK  estal)- 
lished.  I  am  of  opinion  that  it  ouKhC  to  be 
supported.  There  may  lie  cases  where  tlie 
count  for  monev  had  and  n-eeivcd  may  t>e 
of  use  to  the  plaint  iff.  and  the  warranty 
including  a  promise,  u.ay  btj  declared  oD 
as  such. 


786 


STUART  V.  WILKIXS. 


BOLLER,  Justice,— This  mode  bas  been 
ID  use  ever  Hinee  I  have  known  any  thins 
of  practice,  and  ray  Brother  ASHIIUKST 
remembers  it  much  lonser.  Tliere  is  no 
objection  to  It,  in  point  of  form,  which 
could  prevail  even  on  a  wppcial  demurrer. 
Promises  are  not  all  executory.  Uo  not 
«II  our  books  make  a  distinction  between 
Ijroraisea  executed,  and  promises  executo- 
ry;— that    in   one  you   may  traverse  the 


consideration,  in  the  other  not?  Because 
another  action  would  lie,  it  does  not  fol- 
low that  this  will  not.  It  was  determined 
in  Slade's  Case,  that  there  may  be  differ- 
ent actions  for  the  same  injury. i 
The  rule  discharged. 


>T.  44  Eliz.  4  Co. 
son.  2  East,  446. 


1  b.     See  Williamsoa  v.  Alii- 


STUBBS  V.  LUND. 


789 


STUBBS  V.  LUND. 

(7  Mass.  453.) 

Supremo  Judicial  Court  of  Massachusetts.    Cum- 
berland.    May  Term,  1811. 

Itoplevln  of  a  (luaiitity  of  hhU  and  coals. 

TlKMli'fcnilant  ploatlH  inbartliat  tliusaiil 
Halt  and  (M)alH  were  the  iiropci-  (;oo(ln  and 
chattels  of  Letnucl  Weeks  ami  Williain  ('. 
WeckK.  travePHi'M  the  properly  of  tlie 
plaintiff,  and  |)rn.v«  a  return  to  lie  nd- 
jiii1i;imI  him.  with  his  ilaiiiaues  and  costs. 
— 'I'lie  plaintiff  tenders  an  issue  on  llie 
traverse,  which  Is  j(iine<l  \)y  the  defendant. 

This  issue  was  tried  before  Tiia teller.  .1. 
at  an  adjournineni  of  the  last  .May  term 
in  this  county,  and  a  verdict  found  for 
the  plaintiff,  aKreeatily  to  the  ilirections 
of  I  he  jtidue,  to  which  directions  the  de- 
fendant tiled  his  exceptions,  which  were  al- 
lowed hy  the  jiidjre. 

From  the  exceptions  it  appears  that  the 
Jionse  of  Losan,  Lenox  A-  (Jo.  nt  Liverpool 
in  KtiKland,  of  which  the  plaintiff  was 
one,  had  shipped  thecarjio  of  salt  and 
coals  on  hoard  the  sliip  Henry,  .Joser>U 
Weeks  master,  on  the  credit,  and  on  the 
acccnint  ami  risk  of  the  said  I^.  A:  W.  C. 
Weeks,  and  consigned  the  same  to  them 
or  their  assif^iis.  for  which  the  nuister  has 
Klxned  hills  of  ladin;;:  but  hefore  the  ship 
had  left  the  port  of  Liverpool,  the  shij)- 
I)ers,  lieinK  informed  of  the  insolvency  of 
the  consisnees.  refused  to  let  the  ship  sail 
under  the  said  sliipment  of  the  car^o. 
Afterwards  on  the  master's  siKnintr  other 
Mils  of  ladinu;,  ackn<»wled!;inn  the  cari;o 
to  be  shipped  by  the  siiine  persons,  con- 
filKiied  to  the  plaintiff,  the  master  was 
permit  ted  to  sail. 

There  was  shewn  in  evidence  to  the  jury 
an  agreement  between  Lotran,  Lenox  & 
Co.  and  L.  &  W.  ('.  Weeks,  by  which  the 
former  contracted  to  accept  t  he  drauirhts 
of  the  latter,  or  to  advance  them  carjioes 
on  credit,  to  a  limited  amount;  — also  a 
to|iy  of  an  account  current,  in  which  the 
carno  in  (lU'-'stion  was  char;j:ed  by  the 
former  to  the  latter.  The  defendant  Is  a 
flepufy  sheriff  of  this  county,  and  had  at- 
tached the  Roods  in  question  as  the  prop- 
erty of  the  said  L.  &  W.  C.  Weeks,  nt  the 
suit  of  Daniel  Tucker,  in  an  action  brt)U{;ht 
Mlion  seveial  iiromissory  notes. 

Tlie  motion  of  the  defendant  for  n  new 
ti  lal.  iiroundi'd  on  the  supposed  misdirec- 
tion of  the  judne,  was  arj^ued  by  Whit- 
man and  Hopkins  lor  the  defendant,  and 
Mellen  and  ICmery  for  the  iilaintiff. 

The  action  was  continued  nisi,  and  the 
otiinlon  of  the  court  was  delivered  in  llos- 
ton,  at  an  adjournment  of  the  last  March 
term,  by 

r.MSS'tN.S.  (".  .L     The   title  of  the  |dain 

tiff  is  .idniitted    to  be  K 1.  '>"  "le  consi>;n- 

or.s  hail  umler  the  circumstances  of  this 
case,  a  rlulit  to  stop  the  <;oods  in  ((uestion 
in  transitu. 

To  this  riy:ht  the  defendant  has  made 
two  obie<'tions. 

1.  That  the  Kencrnl  credit  Riven  to  the 
original  consignees  by  the  consignors, 
whicli  is  stated  ut  large  In  the  exceptions. 


had  excluded  the  conslRnoni  from  the 
rlRht  of  stopping  In  transitu  goods 
shipped  and  conslgneil  pursuant  to  that 
agreement. — Hut  In  our  opinion  this  ob- 
jection cannot  prevail.  That  agreement 
cannot  bind  the  consignors  after  the  In- 
solvency of  the  consiRnees:  the  credit  con- 
templated being  |»redicated  upon  the  sup- 
posed ability  of  the  consignees  to  pay  at 
the  expiration  of  the  credit.  And  a  credit, 
given  under  such  an  agreement,  can  have 
no  other  effect  on  this  i|uestion.  than  the 
credit   given  under  the  first  bills  of  lading. 

L*.  The  i)tlier  objection  Is,  that  tie  con- 
signees being  either  the  owners  or  the 
hirers  of  the  ship  Hi'nry,  as  soon  as  the 
goods  were  received  on  board  Hint  ship, 
and  bills  of  lading  signeil  by  the  master. 
there  was  no  further  transit,  the  goods 
being  In  the  possession  and  custody  of  the 
consignees.  And  to  support  this  olijec- 
ti<in,  it  was  urged  by  theilefendant 'scoun- 
sel,  that  the  right  to  stop  in  transitu  ex- 
tends only  to  gufjds  ship|ied  on  board  u 
general  ship. 

We  tliink  this  objection  cnnufit  prevail. 
The  right  of  stopping  all  goods  shipiied 
on  the  credit  and  risk  of  the  consignee  re- 
niains  until  they  c<ime  into  his  actual  pos- 
session at  the  termination  of  the  voyage, 
unless  he  shall  Iiave  previously  sold  them 
bona  tide,  and  endorseil  over  the  bills  of 
lading  to  the  purchaser.  And  In  our  opin- 
ion, the  true  distinction  is.  whether  any 
actual  possession  of  the  consignee  or  his 
assigns,  after  the  termination  of  the 
voyage  he.  or  be  not  provided  for  in  the 
bills  of  lading.  When  such  actual  posses- 
sion, after  the  termination  of  the  voyage, 
is  so  provideil  for,  then  the  right  of  stop- 
ping in  transitu  remains  after  the  ship- 
ment. Thus  if  goods  are  consigned  on 
creilit,and  delivered  on  board  a  ship  char- 
terecl  by  the  consignee,  to  be  importeil  by 
him,  the  right  of  stopping  in  transitu  ccn- 
tinues  after  the  shipment  [Hohlllngk  v. 
Inglis.  a  ICast.  :!S1]  :  but  if  the  goods  are 
not  to  be  imported  by  the  consignee,  but 
to  be  transported  from  the  place  of  ship- 
ment to  a  foreign  market,  the  right  of 
stopping  in  transitu  ceases  on  the  ship- 
ment, the  transit  being  then  completed  : 
because  no  other  actual  posscsKMui  of  the 
goods  hy  the  consignee  Is  provided  for  in 
the  lulls"  of  lailing,  which  express  the 
terms  of  the  shipment  [Hodgson  v.  Loy, 
7  I),  vt  K.  MJ.] 

The  same  rule  must  govern,  if  the  con- 
slgm-e  be  the  shipowner.  If  the  goods  are 
delivereil  on  board  his  ship,  to  be  carried 
■to  him.  an  actual  i)os(-cssion  by  him  after 
the  delivery  is  provided  for  by  the  terms 
of  the  shipment  :  but  if  the  goods  are  put 
on  board  his  ship  to  be  transported  to  a 
forelirn  market,  he  has  on  the  shipment 
all  the  possession  contemplated  in  the 
bills  of  lading.  In  the  former  case  the 
transit  continues  until  the  termination  of 
the  voyage;  but  in  the  latter  case  the 
transit  ends  on  the  shipment. 

We  think  also  Hiat  the  same  distinction 
must  exist  In  the  case  of  a  general  ship.— 
If  a  ship  sail  from  lids  country  to  (Ireat 
Itiitain,  with  the  intention  of  taking  on 
board  goods  for  divers  persons  on  freight, 
tt)  be  transported  to  a  foreign    market,  as 


790 


STUBBS  V.  LUND. 


the  mercantile  adventurosof  different  ship- 
pers—if goods  are  so  shipped  by  tlie  Bev- 
eral  consiKiiorH,  there  is  no  triinsit  to  the 
consignees  after  the  shiptuciit;  and  no 
right  of  stopping  remains  with  tlie  con- 
signors. But  it  is  otiiprwise  when  several 
persons  import  goods  in  a  general  ship  on 


their  own  credit  and  risk,  for  a  future 
actual  possession  by  them  is  provided  for 
in  the  bills  of  lading. 

Upon  the  best  view  wo  have  been  able 
to  give  the  case  before  us,  we  are  satisfied 
that  the  verdict  is  right,  and  that  judg- 
ment must  be  entered  upon  it. 


STURTEVAXT  v.  OUSER. 


793 


eXURTEVANT  v.  ORSER. 

(24  N.  Y.  SaS.) 

Court  of  Appeals  of  Now  York.     June,  1802. 

Actinn  to  recover  a  (|iiiintiry  of  oil  nt- 
taehed  in  the  IuiikIh  of  a  WiirehoiiHcinun 
l)y  creditorH  of  tin;  vendee.  I'iniiitiif  had 
u  verdict  for  the  value  of  the  oil,  the  gen- 
eral term  iillirined  the  judgment,  and  de- 
fendant appealed. 

W.  IIMhh,  for  appellant.  K.  Terr^',  for 
renpondent. 

SMITH,.!.  The  delivery  of  the  oil  on 
board  the  vendee's  ship  at  New  Bedford 
waH  un(|nestional)ly  «  delivery  to  Wiiii;. 
and  vested  the  proi>erty  in  him.  'I'lie 
IH'operty,  it  Ih  trne,  wan  to  be  tranKported 
to  New  York  for  wale,  hut  it  waw  to  lie 
tran.siported  by  the  vendi  e  liiniHeK,  who 
could  have  changed  itH  dcstina  tiiin  or  Hold 
it  aliKolutel.v  on  Khiplioard.  After  Kuch 
delivery  it  was  not  nnliject  to  Hto|;pajj;e  in 
tranHltu.  for  it  was  not  in  tl)e  handn  of  a 
carrier  or  iniddle-nian.  (lngli.s  v.  Iwher- 
wood,  1  ICa^t.  ."il"):  Turner  v.  TruHteeH  of 
Liverpool  1>oc1<h,  (i  Knu.  Law  &  Ki\.  .")15; 
()y:le  v.  Atkinwon.  .")  Taunt.  ".">'.».) 

But  if  this  were  not  so,  tlie  vendee  could 
not  exercise  the  rislit  "'  stoppage  in  trans- 
itu, and  the  venilor  made  no  utti'm|)t  fo 
do  so.  (Story  Cont.,  §  nK;.)  The  plain- 
tiff's right  to  recover  the  oil  must,  there- 
fore, lie  put  upon  other  grounds  to  lie  sus- 
tained. 

The  case  is  quite  parallel  to  that  of  At- 
kin  v.  Marwick  (1  Strange,  ic..".).  In  that 
case  the  defendants  were  mercers,  living 
in  London;  and  Cripps  &  Co..  the  assign- 
ors of  the  plaintiff,  were  traders  at  I'cn- 
oyer,  in  Cornwall.  On  the  7th  of  April, 
171.").  the  ilcfcndants,  upon  the  order  of 
Cripps  iV: Co.,  sent  them  the  goods  in  con- 
troversy, and  gave  lliem  credit  (intheii* 
books  for  the  amoiinl.  On  the  Istli  of 
iMay.Cripps  \-  Co.,  without  the  knowledge 
of  the  defendants,  deposited  the  goods 
with  a  third  person  for  the  use  of  the  de- 
fendants. On  the  tith  of  .lune,  Cripps  \- 
Co.  wrote  a  letter  to  the  defendants, 
staling  that  theii- affairs  were  in  a  bad 
condition,  and  that,  for  that  reason,  they 
thought  it  not  rciisunable  that  the  last 
goods  should  goto  other  creditors;  and 
that  they  had,  therefore,  not  entered  tlem 
in  tlieii' liooks,  hut  left  them  with  a  .Mr. 
Penhallow,  who  had  orders  to  deliver 
Ihcm  to  the  defendants.  On  .Inne  !tth  a 
couimission  of  liankruptcy  was  issued 
against  Ciipps  &  Co.,  and  their  effects  as- 
signed to  the  iilninliffs.  The  letter  of 
Cripps  \  Co.  to  the  defendants  ivas  not  re- 
ceived by  them  till  the  l.lth  of  .lune,  which 
was  the  first  notice  they  had  of  the  deliv- 
ery to  I'enhallow;  and  they  immediately 
Klgiiitied  their  consent  to  tr.ke  the  goods 
again. 

This  case,  in  all  its  essential  particulars, 
is  like  the  present  case.  The  good-i,  as  in 
this  c;ise,  were  delivered  to,  and  the  title 
vested  in.  the  vendee:  they  were  deposited 
with  a  third  person  by  the  vendee  for  the 
use  of  the  vendor  before  the  riglits  of  the 
creditors  at  Inched,  and  w  ritten  noticeof 
RHch  deposit  and  of  the  failure  of   the  ven- 


dee slven  to  the  vendor,  and  the  Roods 
aetiinlly  attached  before  the  vendor  at- 
tempted to  reclaim  Ihr-m. 

In  the  decision  of  the  case  of  Atkinv. 
Uarwick.  the  chief  justice  hold  that  "  the 
delivery  to  I'enhallow  to  the  use  of  the 
ilefendants  before  the  oct  of  linnkruptcy, 
and  grounded  on  a  good  consideration, 
transferreil  the  absolute  property  to 
them."  Fortescue,  .1.,  said  that  payment 
in  satisfaction  of  the  debt  was  a  good  con- 
sideration, and  "we  will  intend  an  accept- 
ance till  the  contrary  appears."  Ivy  re,  J., 
said:  "The  precerlent  delit  is  a  siillicient 
consideration,  and  it  vests  before  notice 
[the  title  he  means];  for,  it  being  to  his 
iienetit,  a  disagreement  shall  not  be  pre- 
sumed. " 

I  have  quoted  this  case  thus  fully  be- 
cause it  is  a  leading  one,  and.  If  good  law, 
is  quite  conclusive  of  the  case  now  under 
consideration.  This  case  of  Alkin  v.  Uar- 
wick has  been  mucii  discussed  and  much 
questioned,  lint  not  in  any  case  overrulecL 
In  Ilarman  v.  Fishar  (1  Cowp.  rj.")|.  Lord 
Mansfield  said  of  it,  tliat.  "  with  respect  to 
the  case  of  .\tkin  v.  Itarwick  the  judgment 
f.ecmed  right,  but  the  reasons  wrong." 
In  Neate  v.  Hall  {2  ICast.  Il7i.  Lord  Ken- 
yon  discussed  it,  and  said  that  Lord  Mans- 
field had  extracted  the  true  ground  on 
which  that  judgment,  if  it  did  not  proceed, 
ought  to  have  proceeded;  naiuMly.  that 
the  trader,  finding  himsilf  in  failing  cir- 
cumstances, very  honestly  did  not  accept 
the  gooils.  but  relnrni'd  them.  I!ut  this 
distinction  is  obviously  unsound  and  un- 
tenalde.  Tlie  bankrupt  had  the  goods  In 
possession  for  some  time.  They  were  sent 
him  the  7th  of  April,  and  were  in  his  pos- 
session, and  sent  by  him  for  deposit  with 
a  third  person  on  the  isih  of  .May,  more 
than  forty  days  after  being  delivered  to 
the  vendee,  or  to  the  carrier  for  him  ;  and 
were  in  his  actual  iiossession  when  so  de- 
Iiosited.  The  title  to  them  had  alisolutely 
vested  before  s\ich  deposit.  They  were 
not  intercepted  by  the  way,  or  the  order 
of  purchase  countermanded  before  the 
actual  receipt  of  the  goods.  Hut  Lord 
Kenyon,  and  the  whole  court  of  king's 
liench.  did  recognize  the  case  of  Atkin  v. 
Uarwick  as  sound  law  in  Suite  v.  Field 
(.")  T.  K.  I'll).  Speaking  of  the  case  under 
consideration.  Lord  Kinyon  there  said: 
"I  cannot  distinguish  this  case  from  .Atkin 
V.  lii.rn  ick  on  principle;  for  in  that  case 
there  hi.d  been  a  d<  livery  of  the  goods  by 
the  seller,  with  the  coticurrence  cf  all  the 
|)artieB  interested.  liut  the  ugreen  cut  of 
the  jiarties  to  rescinil  that  contract  put 
an  end  to  the  siile.  as  if  It  had  never  taken 
place."  Aslihnrst,  .1.,  said  :  "The  case  lu 
Strange  appli«'.s  to  the  present  case." 
Ituller,  .1..  saiil  •  "The  prineiiile  on  which 
the  case  of  .\tkln  v.  Itarwick  was  ilecideil 
governs  this."  InSmitli  v.  Field  (.'■  T.  !{. 
Ai)'2)  the  same  court  again  atHrmed  the 
case  ft  .\tkin  v.  Itarwick.  ami  recogidzed 
it  as  sound  law.  The  case  has  also  been 
questioned  in  our  courts.  In  Iti-rly  v. 
Taylor  (.'■  Hill,  .'AD,  Judge  Hronson  dis- 
cusses it,  and.  after  referring  to  the  vari- 
ous cases,  says  of  it.  that,  "although  It 
seems  never  to  have  been  overruled.  It 
would  be  ditlicnlt  to  suppoi't  It  ui)on  prin- 
ciple without  altering  some  of   the  facts  " 


794 


STUKTEVAXT  v.  ORSER. 


But  this  was  in  a  dissentius:  opinion. 
Anfl  ill  the  same  case,  Judge  IJowen,  who 
gave  the  opinion  of  the  court,  conHider.s 
and  discusses  the  case.  !uul  decliires  tliat 
It  has  never  been  overrnleil,  adopts  its 
reaH(inin<>;,  and  atlinns  the  p!inci[)le  upon 
whifli  il  was  decided,  as  the  same  leanied 
judtfe  lia(i  done  liofore  in  Ash  v.  Putnam 
(1  Hill,  310),  where  there  was  no  dissent 
to  the  decision  oroi)inion.  Speaking  then 
of  thecase  of  Atkin  v.  ISarwick,  he  says: 
"There  was  either  a  resale  or  rnscissinn, 
or  a  refusal  liy  the  vendee  to  accept,  fall 
it  which  .vou  please,  the  effect  is  the  same. 
In  one  case,  the  ijioperty  is  revested  in  the 
vendors;  in  the  other,  it  was  never  di- 
vested." 

The  difficulty  in  all  the  class  of  cases  hke 
the  present  has  been  to  Hx  the  point  of 
time  w lien  the  title  of  the  vendor  became 
revested.  The  right  of  rescission,  or  re- 
Hale,  is  undoubted;  but  the  (luestion  is, 
whether  the  rescission  or  resale  is  con- 
summated before  the  as«pnt  of  the  vendor 
to  such  rescission  or  resale  is  actually 
given  or  expressed.  The  moment  the 
minds  of  the  vendor  and  vendee  meet  on 
the  question,  it  is  conceded,  the  contract 
is  rescinded,  or  the  jiroperty  resold  and 
the  title  revested.  If  the  vendor  was  pres- 
ent at  the  same  place  with  the  vendee, 
delivery  to  him  by  the  vendee  in  .-elinqnish 
meat  of  the  contract  c)f  purchase  would,  of 
course,  completely  restore  hiu)  to  his  orig- 
inal rights  of  iiroperty;  but  when  the  ven- 
dor and  vendee  live  in  different  places.it 
has  been  claimed  in  many  cases  that  the 
purpose  of  the  vendee  to  restore  the  prop- 
erty was  ineffectual,  till  the  consent  of  the 
vendor  to  the  rescission  of  the  contract 
was  given,  and  that,  intermediate  that 
period,  the  title  remained  in  the  vendee, 
and  was  subject  to  attachment  or  est-cu- 
tion  at  the  instance  of  his  creditors.  That 
is  the  precise  question  now  presented  in 
this  case. 

rpon  llie  principles  which  apply  to 
sales,  it  is  abstractly  true  that  no  title  can 
pass  till  the  bargain  is  comi)lete,  and  that 
a  contract  is  not  consummated  till  the 
minds  o!  the  parties  meet;  and.  strictly, 
this  sale  must  also  apply  to  agreements 
for  the  rescission  of  a  contract.  It  is  only 
upon  the  doctrine  of  relation,  in  such 
cases,  that  the  title  can  be  held  to  pass  at 
the  time  of  the  deliverj-  of  the  goods  to 
the  tliird  person.  This  doctrine  is  gen- 
erally alleged  to  apply  in  cases  of  trust; 
and  it  is  upon  this  ground  that  the  title 
can  be  held  to  iiass  at  the  moment  the 
trust  is  created,  as  with  cases  of  assign- 
ments in  trust.  Lord  Mansfield  in  Alder- 
son  V.  Temple  (4  liurr.  I'l'o'Ji,  puts  the 
case  of  Atkin  v.  Barwick  on  the  proper 
ground.  He  said:  "The  court  of  chan- 
cery would  have  interposed  and  said  '  the 
assignees  should  not  have  thegoods  with- 
out paying  the  price.'  I  think  the  deter, 
mination  was  right;  and  there  was  an 
actual  delivery  to  a  person  who  became  a 
trustee." 

The  direction  to  hold  in  trust  for  the 
vendor,  and  to  deliver  to  him,  accompa- 
nied by  a  delivery  to  the  warehouseman, 
as  was  done  in  this  case,  and  that  of  Atkin 
V.  Barwick,  is  a  tarol  transler  or  assign- 
meut  of  the  property    to  the  vendor,  and 


vests  the  property.  The  doctrine  of  rela- 
tion in  such  case.  Judge  Cowen  says,  in 
Berly  v.  Taylor  (supraj  api)lics  to  a  deliv- 
ery of  goods  in  trust.  The  delivery  was 
held,  he  says  <if  Atkin  v.  llarwick,  to  vest 
the  property  of  the  goods  in  then)  (the 
vendors)  immediately,  sul)ject  to  lie  di- 
vested by  the  dissent.  This  was  on  the 
ground  that  the  trust  was  beneficial,  and 
the  presumption  was  allowed  although 
the  vendors  at  the  time  knew  nothing  of 
the  transaction. 

This.  I  think,  presents  the  true  ground 
upon  which  the  plaintiff's  claim  may  se- 
curely resf.  The  <lelivery  of  the  oil  to 
Kelly,  with  directi<in  to  deliver  it  to  the 
plaintiff,  was  a  delivery  by  Wing  to  the 
plaintiff,  and  vesteil  the  title  in  liim,  unless 
he  expressly  disaffirmed  the  trust  in  his 
favor.  The  trust  was  irrevocable  by 
Wing.  He  parted  with  all  claim  in  or 
title  to  the  property.  He  ilid  all  in  his 
power  to  restore  the  property  to  the  ven- 
dor. He  acted  with  an  honesty  which 
ought  to  be  encouraged  and  commended, 
not  overreached  and  nullified  by  any 
manner  of  teclmical  rule  at  variance  with 
equity  and  common  justice. 

Rut  tlie  plaintiff's  title  to  this  oil  can  be 
sustained  upon  the  narrow  ground  men- 
tioned by  Lord  Mansfield  in  Harman  v. 
Fishar  (1  C(j%vp.  ]!'.">),  and  stated  by  Lord 
Kenyon  in  Neate  v.  liall  (2  East,  124 1,  that 
tlie  vendee  "did  not  accept  the  goods." 
Wing,  in  this  case,  before  the  goods  ar- 
lived  in  New  York,  refused  to  take  them 
upon  the  purchase,  provided  for  their 
storage  with  Kelly  and  delivery  to  the 
plaintiff,  and  immediately  advised  the 
plaintiff  of  tlie  fact.  Wing  then  had  the 
gdods  under  his  personal  control  after 
they  arrived  at  their  place  of  destination. 
He  restored  them  to  the  plaintiff  in  the 
only  «ay  practicable  under  the  circum- 
stances. 

«  I  think  the  judgment  below  right,  and 
that  the  same  should  be  affirmed. 

DE.NIO,  J.  The  law  of  stoppage  in 
transitu  has  no  application  to  this  case. 
The  oil  was  delivered  to  the  purchaser  on 
board  his  own  vessel;  and,  moreover, 
supposing  it  had  ever  lieen  in  the  hands  of 
a  carrier,  it  had  arrived  at  its  destination, 
and  ha<J  i)assed  into  tlie  actual  posses- 
sion, or  at  least  had  come  under  the  abso- 
lute control  of  the  plaintiff ;  audit  was  in 
no  sense  on  its  passage  to  him. 

If  the  judgment  can  be  sustainel,  it 
must  be  either  upon  the  ground  of  a  rescis- 
sion of  the  contract  by  the  mutual  con- 
sent of  seller  and  purchaser,  or  of  a  recon- 
veyance ami  redelivery  of  the  goods  to 
hiui,  or  to  a  third  person  for  his  use,  in 
pay  .Tien  t  of  the  debt  contracted  by  their 
purchase,  and  by  way  of  preference  in  fa- 
vor of  the  plaintiff  as  acreditor;  and  I 
think  it  can  be  sustained  on  the  first  of 
these  grounds.  The  statement  of  facts  is 
not  as  precise  as  could  be  desired  ;  for  it 
is  not  stated  in  it  whether  the  plaintiff's 
clerk  had  or  had  not  such  a  control  of  the 
business  of  his  principal  as  authorized  him 
to  act  u[)on  the  communication  of  Wing; 
nor  what  determination  became  to  upon 
the  r(»ceipt  of  Wing's  letter;  or  what  he 
said  to  Wing   when   he  saw   him   on   the 


STURTEVANT  v.  OU.SEK. 


795 


loth  of  July.  If  helind  thegeneral  author-' 
ity  of  a  inanat;lii«  clerk,  in  the  ahHCiifi-  of 
bin  principal,  anil  if  he  inutu'iliatfly  electeil 
to  take  back  the  Ko'xlft  in  (iiirHiiance  of 
tlio  offer  of  V'.'inji.  ami  cuniinunicuted  that 
(leterniination  to  Win;?,  and  went  ahout 
HccurinK  the  actual  possi^ssion  without 
unncoeHsary  delay,  I  tliiiik  that  would  he 
a  HUllicient  resiindiiiK  of  the  Male.  An  the 
letter  of  Wins  did  not  nicnliou  the  place 
where,  or  the  perwon  with  whom,  the  oil 
waH  stored,  the  only  tiling  which  the  clerk 
could  do  waH  that  which,  in  effect,  he 
did  do,  namely,  to  Bee  Wins,  and  «hcer- 
tain  these  necPHHary  fact.s.  'I'lilHcould  not 
he  brought  about  in  time  to  send  to  New 
York  until  after  the  sc^rvice  of  the  attach- 
ment. l!nt  if  the  clerk,  with  Mullicient  au- 
thority, consented  to  receive  back  the  oil, 
and  comniuuicate<l  such  determination 
to  Winjr  on  the  10th,  when  he  went  to 
Falmouth,  I  think  the  sale  wa^  rescinded; 
and  althou^ih  the  attaciiTuent  was  levied 
on  the  same  day,  it  does  not  appear  that 
it  was  ijrior  to  the  interview  with  Wing. 
The  cases  of  Salte  v.  Kiehl  (5  T.  H.  L'll)  and 
Smith  V.  Field  (Id.  4(tL')  are  in  point. 

By  the  application  of  the  rules  by  which 
we  examine  cases  brought  here  upon 
statements  of  facts,  I  think  we  ought  to 
intend  that  the  circumstances  which  I 
have  suggested  as  necessary  to  a  perfect 
rescission  existed  in  this  case.  It  is  in- 
cumbent on  the  party  apjieallng,  to  show 
that  the  judgiuent  is  contrary  to  law; 
and  It  is  not  sutlicienl  that  the  case  is  so 
imperfectly  stated  that  the  law  ui)plica- 
ble  to  it  cannot  be  ascertained.  If  we  ap- 
jilied  to  such  cases  the  principles  by  which 
special  verdicts  are  tested,  scarcely  a  judg- 
ment which  is  brought  before  us  could  be 
sustained.  In  cases  of  special  verdicts  the 
inquiry  is,  whether  facts  enough  are  found 
to  sustain  the  judgment.  If  not.  It  is  re- 
versed. But  in  such  cases  as  the  present, 
the  question  is,  whether,  upon  the  facts 
stated,  we  can  adjudge  that  the  judgment 
is  contrary  to   law.     Unless   we  come   to 


such  a  conclusion,  the  Judgment  must  be 
an  uflirmance.  The  facts  which  arestated 
in  this  case  are  perfectly  conslHlent  with 
those  which  I  have  considered  as  essential 
to  constitute  a  rescission  of  the  sale.  The 
clerk  acted  as  though  he  hud  authority  to 
accept  tlie  offer  of  Wing,  contained  in  the 
letter;  for  he  sent  a  message  to  .New  York 
to  the  plaltitlff's  corrcsponilent  to  take 
possession  of  the  oil  as  soon  as  he  uscer- 
tained  where  it  was  storeil.  He  acted 
througliKUt  as  though  cletermitied  to  ac- 
cept the  offered  abandonment  of  the  pur- 
chase. It  is  not  found,  in  so  many  words, 
that  he  told  Wing  that  he  woulil  take  the 
property  hack  ;  but  it  is  stated  tlint  the 
object  of  his  journey  to  Falmouth,  where 
Wing  was,  was  to  ascertain  where,  that 
is,  in  what  storehouse,  or  with  what  per- 
son, tlie  oil  was  storeil;  and  immediately 
on  his  return  hedispatched  theielegraphic 
message  to  New  York  to  take  the  deliv- 
ery of  it  lor  the  plaintiff.  Tlie  idea  that 
the  message  to  those  correspondents  was 
to  make  a  seizure  under  the  law  of  stop- 
page in  transitu  is  not  found  in  the  case; 
and  it  is  itnprobable,  upon  the  facts  which 
are  found.  It  would  l»e  ai)surd  to  9t- 
temiH  to  make  a  seizure  under  the  law  of 
stoppage  in  transitu  when  the  goods  had 
reached  the  purchaser's  hands  at  the  place 
of  destination,  and  he  had  placed  them  in 
the  bands  of  a  third  person  for  tlie  use  of 
the  seller,  and  hud  given  him  notice  to 
come  and  take  lliein.  The  facts  actually 
found  being  in  harmonj-  with  the  suppo- 
sition that  the  clerk  notilied  Wing  that 
the  plaintiff  accepted  his  offer,  it  was  the 
business  of  the  defendant,  if  he  would  Im- 
peach the  jiidgmenl,  as  being  against  law. 
to  liave  procured  a  statement  which 
should  have  altlrmed  the  disputed  fact  to 
be  such  as  he  assumes  it  to  be.  For  these 
reasons,  and  without  examining  the  fur- 
ther questions  ulluiled  to,  I  am  for  the 
Htllrmnnce  of  the  judgment  of  the  supreme- 
court. 
All  concur  in  the  judgment. 


SWAN  WICK  0.  SOTHEKN. 


797 


8WANWICK  et  al.  v.  SOTHERN  et  al. 

(9  Adol.  &  E.  S95.) 

Court  of  Queen's  Bench.     Hilary  Term,  1839. 

Trover  for  Hii's  buHholB  of  outn.  PleaH. 
1.  Not  Kiiilty  2.  That  the  oiitH  were  not 
the  (ironerty  of  the  pliiiiitiffH  in  niiinnet 
JUKI  form,  iScc.  iHsueH  tliereon.  t)n  tlie 
trial  l)efore  I'attt'Hon,  J.,  at  the  [..iverpiiol 
spriMK  assizes,  ls;!7,  the  material  farts  ap 
peared  to  l)e  as  follows.  The  [iliiiiitifrs 
were  ciirn  dealers  at  Manelie.ster ;  the  de- 
feadants  carried  on  the  hiisiriess  of  whurf- 
intters  at  the  Duke's  tjiiay,  in  the  same 
town.  The  oats  in  (lUPKtion,  beinj;  in  a 
warehouse  of  the  defendants,  were  sold 
by  Turner  and  Co..  the  owners,  to  .John 
Marsden,  anil  the  following  delivery  order 
Siven,  addressed  to  tlie  warehouse  keeper. 

"Mr.  \Vm.  ICaton,  Duke's  'iuay,  deliver 
Afr,  .I(din  Marsden  IOl's  IL' 4.'i  bushel  oats, 
bin  ■II).  ().  W.,  anil  you  will  please  wei^li 
them  over  and  charne  us  the  expense. 
Oct.  od,  ls:i(>.     Joseiih  Turner  and  Co." 

The  warehouse  keeper  entered  this  or- 
der in  his  book:  and  on  Oetolier  .'ith  he 
received  the  following  order  from  John 
Marsden. 

"Mr.  \Vm.  Eaton,  Duke's  Quay.  Deliver 
Messrs.  .Swan  wiek  and  Hall  lO'JS  rj-4.'ibtish- 
el  oats  in  bin  4(1.  ().  Warehouse:  and  let 
them  be  wei;;heil  over  and  send  a  note  up: 
I  will  see  it  i)aid.  Fr.  and  .Ino.  Marsden, 
Manchester,  5tli  Oct.  ls:!i). " 

Swanwick  and  Hall,  the  plaintiffs,  ac 
cepted  a  bill  drawn,  by  Marsden,  (_)etol)er 
7tii,  l.s:!(i,  for  the  value  of  the  oats,  which 
was  dul.v  honoured.  Eaton  entered  the 
order  of  October  ."«th  in  his  Ijook.  and  said 
to  the  party  delivering  it,  that  all  would 
be  right,  and  he  woulil  attend  to  the  cir- 
der.  The  oats  were  transferreil  to  the 
plaintiffs  in  the  defendants'  books,  but 
williont  weighing  over.  There  were  no 
oats  in  bin  -la  but  the  iiuautity  nientior.ed 
in  the  order.  ICaton  stated,  at  the  trial, 
that  from  the  .".th  to  the  I'Jth  of  October 
the  oats  would  have  been  delivered  to 
the  plaintiffs  if  reipiired.  .Marsden  hecom- 
iug  ins(dvent.  Turner,  on  October  IL'th, 
gave  the  defendants  notice  not  to  part 
with  the  oats;  and,  on  the  14th,  the  de- 
fendants gave  them  >ip  to  Turner  on  an 
inileninily.  At  that  tia-.e,  iuid  not  before, 
they  were  weighed  over,  and  they  were 
found  to  be  two  bushels  short  of  the 
weight  mentioned  in  the  orders.  It  was 
proved  at  the  trial  that  thedefendants did 
not  consider  themselves  bound  to  weigh, 
and  were  not  used  to  weigh,  till  delivery, 
when  the  grain  was  weighed  to  ascertain 
any  loss  of  (inantity.  The  (IUl''*^"""  ""'*• 
whether,  without  weighinj;,  tlie  property 
was  sutliciently  transferred  to  vest  in  the 
l)laintirfH:  or  whether,  on  Octolier  14th, 
Turnerstill  had  a  right  to  stop  in  transitu. 


Potteson  .1..  thought  that,  on  the  atmve 
state  of  facts,  the  plaintiffs  were  entitled 
to  recover,  but  he  gave  leave  to  move  for 
a  nonsuit:  and  the  iilaintiffs  had  a  ver- 
dict. In  Easter  term,  ls;!7,  u  rule  nisi  was 
obtained  for  u  nonsuit  or  a  new  trial.  In 
Hilary  term,  18:il». 

CresHwell  and  Tomlinson  showed  cause. 
Wightman  and  \V.  H.  Watson,  contra. 

Lord  DE.V.MAN,  C.  ,J.  The  .luestion  In 
this  case  turns  upon  th- construction  of 
two  delivery  orders.  [His  lordship  then 
rea<l  the  orders  set  out,  p. IJl'l, ante.]  The 
oats  were  all  that  were  in  bin  10.  They 
were  transferred  to  the  plaintiffs  In  the 
defendants'  books,  but  never  weighed 
over.  The  plaintiris  had  accepted  a  bill 
for  the  price,  which  tln^y  duly  honoured. 
On  Mnrsdcn's  failure,  .Messieurs  Turner 
s.)iiglit  to  stop  them;  and  the  oidy  ipies- 
tion  Is,  whether  weighing  over  was  in  this 
case  necessary,  in  order  to  ve.st  the  prop- 
erty In  the  plaintiffs  and  defeat  the  stop- 
page in  transitu.  .Neither of  the  conlraetg 
of  sale  were  given  in  evidence. 

The  cases  on  this  subject  establish  the 
principle  that,  wherever  any  thing  re- 
mains to  be  done  by  the  seller,  which  is 
essential  to  thecomiiletion  of  thecoiit  ract, 
a  syniliolical  delivery  by  triin^fiM-  in  the 
whartiimer's  books  will  not  defeat  the 
right  of  stoppage  in  transitu  as  between 
liuyer  and  seller.  Hanson  v.  .Meyer. fi  East, 
f;i4;  Sheplev  v.  Davis. .">  Taunt.  (;17,  (1  E.  C. 
L.  IC -Jll  ;)  "liusk  v.  Davis,:;  .M.  &  S.  :t".t7. 
abundantly  show  this.  Therefore,  if  part 
of  a  bulk  be  sobi,  so  that  weighing  or  sep- 
aration is  necessaiy  to  determine  the  iden- 
tity or  individuality  (as  Eord  lOllenbor- 
ougli  expresses  it  in  I'usk  v.  Davisi  of  the 
article,  or  if  the  wh(de  of  a  ?('.mniodity  be 
sold,  but  weighing  is  necessary  to  ascer- 
tain the  price,  because  the  i|uantity  is  un- 
known, the  weighing  or  nieasnrinir  must 
lirecede  the  delivery;  and  the  s.vmb<dical 
delivery  withi>ut  such  weighing  will  not 
be  sullicient. 

I!at  where  the  identity  of  the  goodHand 
the  (|uantiiy  are  known,  the  weighing 
can  oal.  be  for  the  satisfaction  of  the 
buyer,  as  was  held  In  Hainmond  v..\nder- 
soii,  1  New  Kep.  (HI;  an<l  in  such  case  the 
transfer  in  the  books  of  the  wharlinger  is 
sullicient.  We  are  of  opinion  that  the 
present  case  is  of  the  latter  description, 
and  that  this  |tropert>  passed  as  between 
buyer  and  seller.  We  have  therefi)re  no 
occasion  to  resort  to  the  doctrine  of  es- 
toppel, which  is  Hti-oiigly  enforced  in 
Hawes  V.  Watson,  L'  It.  A:  C.  r>40;  but  we 
do  not  iiiean.  in  so  saying,  to  cast  any 
doulit  upon  the  authority  ol  that  case. 
I'nder  these  circumstai.ces,  the  rule  for  a 
nonsuit  must  Ite  dii-charjiod. 

Uule  discharged. 


SAVIM  0.  WILSON. 


799 


SWIM  V.  WILSON.     (No.  12,0.34.) 

(27  Pac.  Rep.  33,  90  Cal.  I2H.) 

Supreme  Court  of  California.    July  1,  1891. 

In  bank.  Appeal  from  Riipcrlor  court, 
city  and  county  of  San  Francisco;  Joh.v 
Hi; .NT,  Judge. 

Wilson  &  Wilson,  tor  appellant.  TilOeii 
&  TUdea,  for  respondent. 

De  Haven,  J.  The  plaintiff  was  tin 
owner  of  100  shares  of  stock  of  a  niininr 
corixjration.  issued  to  f)ne  II.  15.  Parsoiih 
trustee,  and  pi-ujierly  imlorsed  liy  liin 
Tliis  stock  was  stolen  from  plaintiff  hy  aii 
employe  in  his  oltice.  and  (lclivere<l  (or  s;ili 
to  the  defendant,  who  was  cnKa;;ed  in  tlu 
liusiness  of  buyiiiK  and  selling  stocks  oi 
commission.  At  the  time  of  placing  tli 
stock  in  defendant's  possession,  tlie  thie 
represented  himself  as  its  owner,  and  the 
<leleiidant  relyiiK  ujion  this  represent.-i 
tion,  in  tcood  faith,  and  without  any  no 
tice  that  the  stock  was  stolen,  sold  tli 
same  in  the  usual  course  t)f  husiness,  am' 
Knl)se(iiiently,  still  without  any  notice  th,i 
the  ])ersf)n  forwhom  he  had  acted  in  nial; 
iuf::  the  sale  was  not  the  true  owner,  paii 
over  to  luni  the  net  proceeds  of  such  sale 
Thereafter  the  plaintiff  hrou(?lit  this  ac 
tion  to  recover  the  value  of  said  stock,  al 
Iefj;inK  that  the  defendant  had  convertei 
the  same  to  his  own  use,  and,  the  facts  as 
atiove  stated  appeariim.  the  co\irt  in 
which  the  action  was  tried  save  judt;ment 
against  defendant  for  such  value,  and 
from  this  judsment.  and  an  order  refusing 
him  a  new  trial,  the  defendant  appeals. 
It  is  clear  that  the  defendant's  i)riiicipal 
did  not  by  stealinc  plaintiff's  property  ac- 
ipiire  any  legal  rlnlit  to  sell  it,  and  it  is 
eciually  clear  that  the  defendant,  jictinR 
for  him  and  as  his  rijient,  did  not  have 
any  Rreator  riiy;lit,  and  his  act  was  there 
fore  wholly  unauthorized,  and  in  law  wji> 
a  conversion  of  plaintiff's  property.  "Ii 
is  no  defense  to  an  action  of  trover  tliat 
the  defendant  acted  as  the  nf^ent  of  an 
other.  If  the  jirincipal  is  a  wrouK-doer. 
the  ay.ent  is  a  wrong-doer  also.  A  person 
is  guilty  of  a  conversion  who  sells  the 
propei'ty  of  another  without  authority 
from  the  owner,  notwitlistamling  he  act> 
under  the  authority  <jf  one  claiming  to  hi 
the  owner,  and  is  ignor.Mut  of  such  per- 
son's  waiit  of  title."  Kimliall  v.  Billing- 
.">r,  Me.  U7;  Coles  v.  Clark.  :$  Cash.  :;'.i'.i 
Koch  V.  I'.raindi.  44  Mo.  .''ill'.  In  .Stephen- 
v.  IClwall.  4  M;iule  i:  S.  L'.MI.  this  principli 
Was  aiiulied  where  an  innocent  clerk  re 
ceived  goods  from  an  agent  of  his  em 
ployer,  and  forwarded  them  to  such  em- 
ployer abroad  ;  and,  in  renilering  his  de 
eision  on  the  case  presented.  Lord  Ki.i.i.N- 
Monoroil  uses  this  language:  "The  only 
(piestion  is  whether  tiiis  is  a  conversion  in 
the  clerk,  which  nndoubtedl.v  was  so  in 
the  master.  The  clerk  acted  under  an  un- 
avoid;ible  ignorance  and  fcjr  his  master's 
beiu'lit,  when  he  sent  the  goods  to  his 
master;  but,  nevertheless.  Ins  acts  may 
amount  to  a  conversion:  for  a  persiui  is 
guilty  of  conversion  who  intermeddles 
with  my  property,  and  disposes  of  it.  ami 
it  is  no  answer  that  lie  acted  under  the 
authority   of    another,  who   had    himselt 


no  authority  to  dispose  of  It."  To  hold 
the  defendant  liable,  under  the  circum- 
stances disclosed  here,  may  seem  upon 
first  impression  to  be  n  hardship  ujion 
him.  IJut  it  is  a  matter  of  i-very-<lny  ex- 
perience that  one  cannot  always  be  per- 
fectly secure  from  loss  in  his  dealings  with 
others,  and  the  defendant  hero  is  only  in 
the  iiositlon  of  a  person  who  has  trusteil 
to  the  honesty  of  anothr>r,  and  has  been 
deceived.  He  undertook  to  act  as  agent 
for  one  who  it  now  appears  was  a  thief, 
and,  relying  on  his  represeiitatli;nH,  aid- 
ed IiIh  principal  to  convert  the  plain- 
tiff's property  into  niomw,  and  it  is  no 
greater  hardsliip  to  reipiire  him  to  pay 
to  the  plaintiff  its  value  than  It  wouhl 
be  to  take  the  same  away  from  the  In- 
nocent venilee  who  iiurcdiased  and  jjaid 
for  it.  Ancl  yet  it  is  universally  held  that 
the  purchaser  of  stolen  chattel's,  no  mat- 
ter how  innocent  or  free  from  negligence 
in  the  matter,  aequireH  no  title  to  such 
property  as  against  the  owner,  and  thirt 
rule  has  been  applied  in  this  court  to  the 
case  of  an  innoeent  iiUTchaser  of  shares  of 
stock.  Harstow  v.  .Mining  Co.,<)4  Cal.  :}S>«, 
1  I'ac.  Itep.  [H'.);  Sherwood  v.  Mining  Co., 
.'iOCal.  4i:(. 

The  precise  question  Involved  here  arose 
in  the  case  of  liercieh  v.  Marye.  !l  Nev.  :i\'2. 
In  that  case,  as  here,  the  defendant  was  a 
stockholder  who  had  made  a  salt-  of  stolen 
certilicates  of  stock  fvr  a  stranger,  and 
paid  him  the  procee<ls.  He  was  held  lia- 
ble, the  court  in  the  course  of  its  opinion 
saying:  "It  is  next  objected  thiit.  as  the 
defendant  was  the  Innocent  agent  of  the 
person  for  whom  he  received  the  shares 
of  stock,  without  knowltMlge  of  the  felony, 
no  judgment  should  have  been  rendered 
against  him.  It  is  well  settled  that 
agenc.v  is  no  defense  to  an  action  of  tro- 
ver, to  which  the  present  acti'm  is  anal- 
ogous." Tlie  sameconelusion  was  reaclu'd 
in  Kimball  v.  Hillings,  ."m  .Me.  147,  the 
property  sol<l  in  that  case  by  the  agent 
being  stolen  goveriunent  l)onds,  payable 
to  bearer.  The  court  there  said  :  "  Nor  is 
it  an.v  defense  that  the  property  sold  was 
government  bonds  payable  to  beaivr. 
The  l)oii;i  tide  purchaser  of  a  stolen  bond 
payable  to  bearer  might  perhaps  defend 
his  title  against  even  the  true  owner.  Hut 
there  is  no  rule  of  law  th.'il  secures  initnu- 
nity  to  the  agent  of  the  thief  in  such  cases, 
nor  to  the  agent  of  one  not  u  bona  tiijf 
holder.  •  •  •  'rii,.  rule  of  law  pro- 
tecting hoitii  tiilo  purchasers  of  lost  or 
stolen  notes  and  bonils  payable  to  liearer 
has  never  been  extended  to  persons  not 
linim  lidf  purchasers,  nor  to  their  agents.  " 
Indeed,  we  discover  no  difference  in  prin- 
ciple between  the  case  at  bar  anil  that  of 
Rogers  V.  Iluie,  1  Cal.  ."I.  in  which  case. 
IJk.wktt.  .1.,  speaking  for  the  court,  said  : 
".\n  auctioneer  who  receives  and  selKs 
stolen  property  is  liable  lor  the  conver- 
sion to  the  same  extent  as  any  other  mer 
chant  or  individual.  This  is  so  both  tipon 
principle  and  authority.  I'pon  principle, 
there  is  no  reason  why  he  should  be  ex- 
empted from  liability.  The  person  to 
whom  he  sells,  anil  who  has  paid  the 
amount  of  the  purchase  money,  would 
be  compi-lled  to  deliver  the  property  to 
the  true  owner  or  |>ay  him  Its  full  value; 
aud  there  Is  no  luure  hardship  lu  requiring 


800 


SWIM  V.  WILSON. 


tlic  auctioneer  to  account  for  the  value  of 
the  floods  than  there  would  be  in  compel 
liiifl  the  right  owner  to  lose  them,  or  the 
lunrhasor  from  the  auctioneer  to  i)ay  for 
them."  It  is  true  that  thin  same  case 
afterwards  came  before  the  court,  and  it 
was  held,  in  an  opinion  reported  in  2  Cal. 
."iTl,  that  an  auctioneer,  who  in  the  regu- 
lar course  of  his  Ijusiness  receives  and  sells 
stolen  goods,  and  pays  over  the  proceeds 
to  the  felon,  without  notice  that  the 
goods  were  stolen,  is  n<it  lialtie  to  the  true 
owner  as  for  a  conversion.  This  latter 
decision,  however,  cannot  lip  sustained  on 
principle,  is  op])osed  to  the  great  weight 
of  a\itliority,  and  has  been  practically 
overruled  in  the  later  case  of  Orkel  v. 
Wateiman,  (!:!  Cal.  34.  In  that  case  the 
defendants,  who  were  commission  mer- 
chant's, sold  a  (luantity  of  wheat,  suppos- 
ing it  to  bo  the  jiroperty  of  one  Williams, 
and    paid  over  to  liim  the  proceeds  of  the 


sale  before  they  knew  of  the  claim  of  the 
plaintiff  in  that  action.  There  was  no 
fraud  or  bad  faith,  but  the  court  held  the 
defendants  there  liable  for  the  conversion 
of  the  wheat.  It  was  the  duty  of  the  de- 
fendant in  this  case  to  know  for  whom  he 
acted,  and,  unless  he  was  willing  to  take 
the  chancfcs  of  loss,  he  ought  to  have  sat- 
isfied hiniself  that  his  principal  was  able 
to  save  him  harmless  if  in  the  matter  of 
his  agency  he  incurred  a  personal  liability 
hy  the  conversion  of  property  not  belong- 
ing to  such  principal.  Judgment  and  or- 
der affirmed. 

Gahoutte,   McFari.and,  and   Suahp- 
STEiN,  JJ.,  concurred. 

Beatty,  C.   J.,  and    Pathrso.n',   J.,  dis- 
sented. 

Rehearing  denied. 


TALCOTT  V.  IIENDKUSOX. 


803 


TALCOTT  V.  HENDERSON. 

(31  Ohio  St.  103.) 

Supremo  Court  of  Ohio.     Dec.  Term,  1877. 

Motion  for  leave  to  file  a  petition  in  er- 
ror to  the  (iistrict  court  of  Cuyaliojra 
ccMiiity.  'llie  original  action  wjih  lire  iiik  lit 
ill  tlic  court  of  common  pieaH  of  ('uyuliof^a 
loiinty  liy  .lames  Talcott  aKainHt  John  M. 
Henderson,  nissiKnee  of  !)<!  Forrest  &  Son, 
to  recover  the  possession  of  certain  Kootls. 
Tlie  issue  in  tlie  case  was  in  relation  t(j 
tilt!  ovvnership  of  the  Koods,  whicli  the 
court  foiiiul  to  1)0  in  the  defendant.  On 
(letltion  in  error  the  district  court  uf- 
tirined  the  judgment  of  tlieconiinon  pleas. 
The  real  (iuesti<in  in  the  case  is  whether 
there  was  fraud  in  the  jinrchase  (jf  the 
jfoods  in  controversy  from  the  plaintiff 
l)y  the  defendant's  assifjiiors,  l)e  Forrest 
&  Son.  The  fiillovvin};  facts  were  proved: 
Ahout  the  middle  of  June,  lN7:i,  an  a^reiit 
of  the  pluintiff  ( who  was  a  merchant  in 
tlie  city  of  New  York)  solicited  an  order 
for  (ioods  suitable  for  the  fall  trade  from 
I)e  Forrest  &  Son,  in  Cleveland.  An  order 
was  Kiven  for  the  floods  in  dispute  to  he 
shipped  on  or  liefore  th(?  1st  of  Septem- 
lier  following;,  to  be  paid  for  at  four 
months  from  that  date.  Do  Forrest  & 
Son  had  kiiowlediie  at  the  time  of  their 
insolvency,  but  the  plaintiff  was  i^fnorant 
of  it.  No  information  was  smi<;ht  or 
Riven  as  to  the  responsibility  of  the  pnr- 
cluiscrs.  On  the  L':id  of  .July,  shortly  after 
the  goods  had  been  received,  I)e  Forrest  & 
Son  a!-siy;ned  to  the  ilcfcndant,  for  the 
benelit  of  their  creditors,  all  their  prop- 
erty, and  the  goods  in  (|uestion,  with 
other  goods,  were  delivered  to  the  as- 
signee. The  stock  of  goods  in  the  store 
delivered  to  the  assignee  was  appraised 
at  fNS.OOO.  l)e  Forrest  showed  that  the 
condition  of  l>e  Forrest  &  Son  had  not 
materially  changed  for  18  months  jirevi- 
ous  to  the  assignment.  Their  principal 
creditors  were  11.  15.  (  laflin  &  Co.,  of  New 
Vork,  who  had  extended  to  them  during 
that  period  a  line  of  credit  to  the  amount 
of  l|!-'(M),(K)(t,  under  an  arrMngement  that  it 
would  be  continued  as  long  as  ('lalliii  & 
Co.  could  use  the  paper  of  l)e  Forrest  & 
Son.  Mr.  De  Forrest  furthertestitied  that, 
at  the  time  of  purchasing  the  goods  in 
controversy,  "my  jiurpose  was  t<i  comply 
with  the  terms  of  the  purchase  we  maih' 
to  )icy  for  them."  "I  liad  no  reasun  at 
that  time  to  think  that  we  would  not  be 
able  to  do  so.  I  knew,  and  had  known 
for  the  last  year,  if  Clatlin  &  Co.  did  not  I 
continue  the  arrangement,  we  could  not 
continue  to  buy;  fell  we  wei'e  carried  by, 
a  strong  party,  and  I  was  in  hones  to  see  i 
the  trade  improve.  I  should  think  we 
were  selling  at  the  rate  of  half  a  million 
a  year,— $J."),Ol)0  per  mouth."  Without 
previous  notice,  Clatlin  &  Co.,  on  the  L'lst 
of  .Inly,  l<S7;i,  refused  to  extend  the  ar 
rniigenient  with  De  Forrest  &  Son  any 
longer;  and,  on  the  '2'Ml  of  the  mt>ntli, 
the  general  assignnient  waa  executed  as 
above  stated. 

Hutchins  &  rnniplie'l.  for    the  motion. 
Henderson  &  Klein,  contra. 


.McILVAINE,  J.  Tlie  contention  of  the 
plaintiff  in  error  is,  that  the  failure  of  De 
Forrest  &  .Son,  at  the  time  of  making  the 
purchase,  to  disclose  the  fact  that  their 
liabilities  were  largely  in  excess  of  the 
value  of  their  assets,  wa-«,  in  law,  such  a 
fraud  upon  the  plaintiff  as  warranted 
iiini  in  a voidiiigthe  contract,  and  reclaim- 
ing the  goo(Js. 

An  intention  on  the  part  of  tlie  pur- 
chaser of  goods  not  tf)  iiay  for  thens.  ex- 
isting at  the  time  of  [lurchase,  and  con- 
cealed from  the  vendor,  is,  nni|Uestion- 
ubly,  such  a  fraud  as  will  vitiate  the  con- 
tract. I'.ut  it  Is  as  certainly  true,  on  the 
other  hand,  that,  where  iii;  such  fraudu- 
lent intent  exists,  tin-  mere  fact  that  tlitt 
purchaser  has  knowledge  that  his  debts 
exceed  his  assi'ts.  though  the  fact  lie  un- 
known and  undisclosed  to  the  vendor, 
will  not  vitiate  the  purchase. 

Whether,  therefore,  a  contract  of  r<ur- 
chase,  where  the  purchaser  fails  to  dis- 
close his  known  insulveiicy.  is  fraudulent 
or  not.  depends  on  the  intiMition  of  the 
purdiascr;  and  \\lietlicr  that  intention 
was  to  pay  or  not  to  [lay.  is  a  ijuestion 
of  fact,  aii'l  not  a  (|uestlon  of  law. 

In  thesolution  of  tiiisi|uestion,  though  it 
be  one  of  fact,  it  is  true,  iiowever,  that  cer- 
tain presumptions  arise  which  are  entitled 
toconsideration  and  force.  'I'hus.  while  it 
may  be  said  that  fraud  must  be  [iroved, 
and  will  not  be  presumed,  there  is  a  pre- 
sumption that  every  reasonable  person 
anticipates  and  intends  the  ordinary  and 
probable  coiiseiiueiices  ol  known  causes 
and  conilltions.  llnice.  if  a  purchaser  of 
goods  has  knowledge  of  his  own  insol- 
vency, ami  of  his  iiiMliility  to  pay  fur  them, 
his  intention  not  to  pay  sliould  be  pre. 
sunied.  I  would  goastepfarther.and  hold 
that  an  insolvent  purchaser,  without  rea- 
sonable exiM'ctations  of  ability  to  pa.v. 
should  be  presumed  to  intend  not  to  pay. 
Indeed,  I  would  not  deny  that  an  intention 
not  to  pay  might  be  inferred  from  the 
mere  fact  that  the  |)urchaser  had  uuUis- 
dosed  knowlcilge  ol  his  gross  insolvency; 
but,  in  such  case,  the  infereni'e  may  be  re- 
butted by  otiicr  facts   and   circumstances. 

it  is  claimed  that,  in  good  morals,  a 
liurchaser,  knowing  himself  to  be  insol- 
vent, should  not  accept  cre(lit  from  one 
ignorant  of  the  lact.  WlietluT  this  prop- 
osition be  true  or  not,  it  is  enough  to  sny 
that  the  law,  in  its  practical  morality, 
does  not  afford  a  remedy  for  the  viula- 
tion  of  every  moral  duty.  While,  there- 
fore, a  purchase  of  goods  by  an  insolvent 
vendee,  who  conceals  his  insolvency, 
with  intent  to  injure  the  vendor,  is  fraud- 
ulent and  voidable,  yet  n  purchase  un- 
der like  circumstances, save  only  that  such 
intent  is  nnsent.  is  not,  in  law,  fraudu- 
lent. 

If  the  rule  of  law  be  not  as  stated,  and 
the  intent  to  injure  be  not  of  the  essence 
(if  the  fraud  in  such  case,  then  it  would  be 
wlirilly  immaterial  whether  the  insolvency 
of  the  purchaser  was  known  to  hiiunelf; 
and  the  rule  would  lie  that  all  sales  to  nn 
insolvent  puri-liMser,  where  the  insolvency 
is  unknown  to  the  vendor,  are  framlulent 
and  volilable.  For  such  a  rule,  no  one 
would  coutenil.  .Ml  would  admit  that 
knowledge   by   the  purchaser  of  his   own 


804 


TALCOTT  V.  HENDERSON. 


insolvency  is  necessary  to  establish  the 
fraud.  But  such  knowledge,  of  itself,  is 
entirely  innocent.  It  is  only  where  con- 
nected with  the  eoncealnient  of  the  frtct, 
that  fraud  is  shown.  The  simple  failure 
to  disclose  a  fact,  nowever,  is  not  equiva- 
lent to  Its  concealment.  The  latter  im- 
plies a  purpose— a  design  ;  the  former  does 
not.  It,  tlien,  such  kuowledKe  on  the  part 
of  the  purchaser  be  necessary  to  make  out 
a  fraud,  it  is  because  it  becomes  the  predi- 
cate of  an  intent— an  intent  to  injure. 

True,  the  decisions  of  different  courts 
upon  this  question  are  not  uniform.  The 
discrepancies,  however,  are  not  so  much 
on  the  point  whether  a  fraudulent  intent 
on  the  part  of  the  purchaser  is  necessary 
to  avoid  the  purchase,  as  to  the  question 
of  conclusiveness,  under  the  circumstances 
ofeacli  case,  of  the  inference  of  fraudulent 
intent,  from  the  facts  that  the  purchaser 
had  knowledge  of  his  insolvency,  and 
failed  to  disclose  it  to  the  vendor.  There 
is  no  well-considered  case,  so  far  as  I  have 
examined  the  authorities,  which  holds 
that  fraud  is  conclusively  presumed  from 
these  facts  alone.  Where,  in  addition,  it 
is  shown  that  the  appearance  and  circum- 
stances of  the  purcha.ser  indicate  solvency 
and  wealth,  thers  are  cases  which  hold 
the  inference  of  fraudulent  intent  to  be 
conclusive.  Of  course,  we  admit  that  if 
the  appearance  of  solvency  be  assumed 
for  the  purpose  of  deceiving,  as  in  Ford 
V.  At  water,  1  Root,  58,  the  e.\istence  of 
fraud  is  actually  shown;  but,  we  think 
that  where  such  appearance  is  entirely 
innocent,  the  question  of  the  existence  of 
fraud  is  still  open  to  further  inquiry. 

From  these  views,  how  stands  the  case 
liefore  us?  At  the  date  of  the  contract, 
I)e  Forrest  &  Son  were  largely  insolvent. 
They  had  knowledge  of  the  fact,  and  did 
not  disclose  it  to  the  plaintiff,  wlio  was 
ignorant  of  it.  They  were  also  in  pos- 
session of  a  large  stock  of  merchandise, 
and  were  doing  an  extensive  business. 
From  these  facts,  it  might  well  be  inferred 


that  they  intended  to  obtain  the  plain- 
tiff's goods  without  paying  for  them;  at 
least,  that  thej'  had  no  reasonable  expec- 
tation of  being  able  to  pay  for  them  at  the 
maturity  of  their  promise.  If  thecourt  be- 
low had  so  found,  we  would  not  disturb 
the  finding;  and,  for  aught  that  a|)pear8, 
thecourt  would  have  so  found,  if  no  other 
fact  had  appe.-ired  in  the  case. 

But  there  was  other  testimony,  tending 
to  prove  that  De  Forrest  &  Son  did,  in 
fact,  intend  to  pay  for  the  goods,  accord- 
ing to  the  terms  of  their  agreement,  and 
that,  under  all  the  circumstances,  they 
might  reasonably  have  expected  to  be 
able  to  do  so.  It  is  quite  sure  that  they 
could  not  reasonably  have  expected  to  be 
able,  at  that  time,  to  i)ay  all  their  indebt- 
edness; but,  in  our  opinion  it  was  not 
essential  to  the  good  faith  of  the  transac- 
tion, that  there  should  have  been  reason- 
able grounds  for  the  latter  expectation  ; 
it  was  enough,  if  they  reasonably  expect- 
ed to  be  able  to  pay  for  tlie  goods  in  ques- 
tion at  maturity. 

It  is  quite  clear,  from  the  evidence,  that 
the  appearances  of  wealth  which  sur- 
rounded the  purchasers  were  entirely  in- 
nocent. It  may  be  that  the  plaintiff  was 
misled  by  these  appearances;  hut,  upon 
this  ground,  he  can  not  complain  of  fraud. 
Where  an  insolvent  merchant  is  engaged 
in  an  honest  effort  to  retrieve  his  fortunes, 
the  appearance  of  wealth  indicated  by  his 
stock  in  trade  is  not  equivalent  to  a  repre- 
sentation of  solvency ;  and  one  who  gives 
him  credit,  v;;thout  inquiry,  has  no  right 
to  complain  of  fraud. 

It  was  the  duty  of  the  court  of  common 
pleas,  discharging  the  functions  of  a  jury, 
to  weigh  all  the  testimony;  and  having 
done  so,  and  found  that  there  was  no  in- 
tent to  defraud  in  the  transaction,  we,  as 
a  reviewing  court,  can  not  say  that  the 
district  court  erred  in  not  finding  that 
the  judgment  of  the  common  pleas  was 
manifestly  against  the  evidence. 

Motion  overruled. 


•     TALVER  p.  WEST. 


807 


TALVER  et  al.  v.  WEST. 

(Holt,  17S.) 

Nisi  Prins,  Common  Pleas.    Hilary  Term,  1816. 

This  was  an  action  to  recover  the  price 
of  Hoinc  trefoil  sold  by  plaintiffs  to  defend- 
ant; the  invoice  delivered  to  the  di'fend- 
ant  was  as  lollows:  "  Bought  of  Talver 
and  PrcHtwieh  the  halt  quantity  of  four 
hundred  sacks  of  trefoil,  to  be  made  up  to 
twenty-seven  tons,  at  £10  per  ton."  On 
the  other  side  credit  was  given  for  Kome 
hops  sold  by  the  defendant  to  the  plain- 
tiffs, and  a  balance  stated  to  be  due  to 
them  of  £208.  The  hops  were  taken  in 
part  payment  of  the  trefoil,  which  re- 
mained in  the  plaintiffs'  warehouse;  no 
sample  or  delivery  was  made  of  any  part 
and  no  money  was  paid;  but  the  invoice 
had  been  delivered  to  the  defendant,  who 
read  it  at  the  time  of  the  sale.  Some 
months  after,  the  defendant  came  to  the 
warehouse  and  asked  for  his  seed  ;  It  was 
at  that  time  set  apart  for  him  in  thestore, 
but  it  had  no  particular  mark  to  denote 
to  whom  it  belonged.  Defendant  took 
samples   of  it,  and    inquired  if  it  had    not 


bsen    thrown  down  and  mixed;  he  finally 
refused  it. 

Best,  Serjeant,  and  Comyn,  for  plain- 
tiffs. Vaa^han  and  Copey,  tierjeanta,  (or 
defendant. 

GIBBS,  C.  J.  If  the  trefoil  were  Bold  to 
be  paid  for  in  part  by  the  delivery  of  the 
hops,  the  plaintiffs  should  have  declared 
specially,  and  not  for  floods  sold  and  de- 
livered ;  but  I  consider  this  rase  not  with- 
in the  statute.  The  delivery  of  a  sample, 
which  Is  no  part  of  the  commodity,  will 
not  take  the  case  out  of  the  statute;  but 
if  the  sample  <leli\ered  Is  to  be  considered 
as  part  of  ti.e  thing  sold,  it  then  binds  the 
contract.  It  is  then  an  execution  of  the 
bargain.  The  sale  in  this  case  was  com- 
plete when  the  invoice  was  delivered,  and 
the  defendant  afterwards  took  samples. 
He  took  them  for  his  own  use;  they  were 
delivered  to  him  as  part  of  the  bulk  ;  not 
as  an  ordinary  sample  to  guide  his  judg- 
ment previous  to  a  purchase,  but  in  order 
to  give  him  possession  of  the  thing  itself. 
The  statute  therefore  does  not  apply. 

Verdict  for  plaintiff. 


TARLIXG  V.  BAXTEU. 


809 


TARLING  V.  BAXTKR. 

(6  Barn.  &  C.  360.; 

Court  of  King's  Bench.    Hilary  Term,  1827. 

AHsuinpsit  to  recover  back  £145  paid 
by  the  plaintiff  to  the  defendant'H  use. 
The  declaration  containei]  couiitH  for 
money  had  and  received,  and  the  other 
common  counts.  Flea,  general  iKsuc, 
with  a  notice  of  Het-off  tor  kooiIs  Hold 
ami  delivered  and  bargained  and  Hold.  .At 
the  trial  before  Abbott  C.  J.,  at  the  Lon- 
don HittinKH  after  Hilary  term,  Isi'ij,  a  ver- 
dict was  found  for  the  plaintiff  for  £U.j, 
Hul)ject  to  the  opinion  of  this  court  on  tlie 
following  case. 

On  the  4th  of  January  1.S2.'),  the  plaintiff 
bouisht  of  the  defendant  astaclc  of  hay  be- 
loajrinK  to  the  <lef(ndunt,  and  then  stand- 
iufj  ill  u  liild  b("l()n>;in«  to  the  defendant's 
brotlicr.  The  note  Hi^ned  by  the  defend- 
ant, and  delivered  to  the  plaintiff,  was  in 
tlitse  words:  "I  have  this  day  agreed  to 
sell  James  Tarlin^  a  stacii  of  hay,  stand- 
ins  in  Canonbury  Field,  Islinjxton,  at  the 
sum  of  one  hundred  and  forty-live  pounds, 
the  same  to  be  |)aid  on  the  4th  day  of  Feb- 
ruary ne.\t,  and  to  be  allowed  to  stand 
on  the  jircmises  until  the  first  day  of 
May  next."  And  the  following;  note'was 
signed  by  the  plaintiff,  and  delivered  to 
the  defendant.  "I  have  this  day  agreed 
to  buy  of  Mr.  John  Uaxter.a  stacli  of  hay, 
standing  in  Canonbury  Field,  Islinjiton. 
at  the  sum  of  £145,  the  same  to  be  jjaid 
ou  the  4th  day  of  February  next,  and  to 
be  allowed  to  stand  on  the  premises  until 
the  lirst  day  of  Maj'  next,  the  same  hny 
not  to  be  cut  until  paid  for.  .lanunry  4th, 
1><25. "  At  the  meeting  at  which  the  notes 
were  signed,  but  after  the  signature  there- 
of, the  defendant  said  to  the  plaintiff, 
"  You  will  particularly  oblige  me  by  giv- 
ing me  a  bill  for  the  anuiunt  of  the  hay." 
The  plaintiff  rather  objected.  Tlie  defend- 
ant's brother,  S.  liaxter,  on  the  Nth  of  the 
same  month  of  January,  took  a  bill  of 
exchange  for  £145  to  the  plaintiff,  drawn 
upon  him  l>y  the  defendant,  dated  the  4th 
of  January  ISL'5,  payable  one  inonth  after 
date,  which  tlie  plaintiff  accepted.  The 
defendant  afterwards  indorsed  it  to 
Geoige  Haxter,  and  the  plaintiff  paid  it 
to  one  Taylor,  the  holder,  when  it  liecame 
due.  The  stack  of  hay  remained  on  the 
same  field  entire  until  the  20th  of  .lanuary 
1S25,  when  It  was  accidentally  wholly  con- 
sumed by  fire,  without  any  fault  or  neg- 
lect of  either  party. 

A  few  days  after  the  tire,  the  plaintiff 
applied  to  the  defendant  to  know  what  he 
meant  to  do  when  the  bill  becamedue;  the 
defendant  said,  "I  have  paid  it  away,  and 
you  must  take  it  up  to  be  sure:  I  have 
nothing  to  do  with  it,  why  did  you  not 
remove  the  hay."  The  plaintiff  said,  "he 
could  not,  because  there  was  a  memoran- 
duin  'that  it  should  not  be  removed  until 
the  bill  was  paid;'  would  you  have  suf- 
fered it  to  be  removed?"  and  the  defend- 
ant said,  "certainly  not."  The  defend- 
ant's set-off  was  for  the  price  of  the  ha.v 
agreed  to  be  sold  as  aforesaid.  The  ques- 
tion for  the  oiiinion  of  the  court  was, 
whether   the   plaintiff  under    the    circum- 


stances was  entitled  to  recover  the  sum  of 
£145  or  any  part  thereof. 

Chitty,  for  plaintiff. 

BAYLEYJ.— It  Is  quite  clear  that  the 
loss  must  fall  upon  him  in  whom  the 
property  was  vested  at  the  time  when  it 
was  destroyed  by  tire.  And  tlie  (juestion 
is.  in  whom  the  property  in  this  hay  was 
I  vested  at  that  time?  By  the  note  of  the 
contract  delivered  to  the  plaintiff,  the  de- 
fendant agreed  to  sell  tlie  plaintiff  a  stack 
of  hay  standing  in  Canonbury  Field  at  the 
sum  of  £145,  the  same  to  be  paid  for  on 
the  4th  day  of  I'ebiuary  next,  and  to  be 
allowed  to  stand  on  thepreniises  until  the 
first  day  of  .May  next.  Now  this  was  a 
contract  for  an  immediate,  not  a  (iro- 
H[iectivesale.  Then  thequestlon  is,  in  whom 
did  the  proiierty  vest  by  virtue  of  this 
contiact?  The  right  of  property  and  the 
riglit  of  possession  are  distinct  "from  each 
other;  the  right  of  posKession  may  lie  in 
one  person,  the  light  of  propeity  in  an- 
other. A  vendor  may  have  a  qualified 
riglit  to  retain  the  goods  unless  payment 
is  duly  made,  and  yet  the  property  in 
these  goods  may  be  in  the  vendee.  The 
fact  in  this  ease,  that  the  hay  was  not  to 
be  paid  for  until  a  future  period,  and  that 
it  was  not  to  be  cut  until  it  was  paid  for, 
makes  no  difference,  provideil  it  was  the 
intention  of  the  parties  that  the  vendee 
should,  by  the  contract,  immediately  ac- 
quire a  right  of  property  in  the  goods,  and 
the  venilor  a  right  of  property  in  the 
price.  The  rule  <jf  law  is, that  ivhere  there 
is  an  immediate  sjile. ami  nothing  remains 
to  be  done  by  the  vendor  as  between  him 
and  the  vendee,  the  property  in  tlie  thing 
sold  vests  in  the  vendee,  and  then  all  the 
conse()uences  resulting  from  the  vesting  of 
the  propeity  follow,  one  of  which  is.  tliat 
if  it  be  destroyed,  the  loss  falls  upon  the 
vendee.  The  note  of  the  buyer  imports 
also  an  immediate,  perfect, absoluteagree- 
meat  of  Rale.  It  seems  tome  that  the  true 
construction  of  the  contract  is,  that  the 
parties  intended  an  immediate  sale,  and 
if  tliat  be  so,  the  property  vested  in  the 
venJee.  and  the  loss  must  fall  upon  him. 
The  rule  for  entering  a  nonsuit,  must 
therefore  be  made  absolute. 

HOLHOYD  J.— I  think  that  in  this  case 
there  was  an  immediate  sale  of  the  linv, 
accompanied  with  a  stipulation  on  the 
part  of  the  vendee,  that  he  would  not  cut 
it  till  a  given  period.  Now  in  tlie  case  of 
a  sale  of  gooils,  if  nothing  remains  to  bo 
ilono  on  the  part  of  the  seller,  as  between 
him  and  the  buyer,  before  the  thing  pur- 
chased is  to  tin  delivered,  the  jiroperty  In 
the  goods  iiniiitdiately  passes  to  the 
liuyer,  and  that  in  the  price  to  the  seller; 
but  if  any  act  remains  to  be  done  on  the 
part  of  the  seller,  then  the  property  does 
not  pass  until  that  act  has  been  done. 
I  am  of  opinion,  tlierefore.  in  this  case, 
not  only  that  the  propert.v  immediately 
passed  to  the  buyer  by  the  contract,  but 
that  the  seller  thereby  immediately  ac- 
(] Hired  a  riiilii  in  the  price  stipulateiito  be 
paid  for  the  goods,  although  that  was 
nut  to  be   paid    until   n   future   day.     The 


810 


TAULIXG  V.  BAXTER. 


property  having  passed  tf)  t 
and  liavinK  been  accidentally 
before  tlie  day  of  payment,  tlie 


to  tlie  vendee, 
lly  destroj'ed 
lie  losa  must 


lief(.. 

fall  upon  lilui 

LITTLEDALE  J.— The  parties  on  the 
4tli  of  January  stipulated  for  the  sale  and 
purchase  of  a  stack  of  hay,  to  tie  paid  for 
in  a  month.— Thus  the  case  would  have 
Btood  but  for  the  note  of  the  contract  de- 
livered to  the  buyer,  and  iu  that  there  was 


a  stipulation,  that  the  purchaser  would 
not  cut  until  the  money  was  paid,  but 
the  property  in  the  hay  had  already 
passed  by  the  contract  of  sale  to  the  pur- 
chaser, and  the  latter  afterwards  merely 
waived  his  risht  to  the  immediate  posses- 
sion. Then  the  property  having  passed 
to  the  buyer,  the  loss  must  fall  upon  him, 
and  consequently,  this  rule  for  entering 
a  nonsuit  must  be  made  absolute. 
Rule  absolute. 


TERKY  0.  WHEELER. 


818 


TERRY  V.  WHEKLER. 

(35  N.  Y.  520.) 

Court  of  Appeals  of  New  York.    June  Term, 

Action  to  recover  tlie  price  of  n  quantity 
of  luniher  purchuKod  by  plaintiff's uswixnor. 
On  the  trial  it  appeared,  that  on  the  l'4th 
of  AnRust,  1H,")4,  the  defendant  sold  to  tine 
KImore,  a  quantity  of  lumber,  at  the  price, 
and  upon  the  terms  set  forth  in  the  follow- 
ing bill  of  sale: 

"Troy,N.  Y.,  August  24,1.S54.  Mr.  Lewis 
Elmore,  Bought  of  E.  B.  Wheeler.  (Terras 
— Three  months  from  date  of  sale.) 

4,lG0feetclear  pine,  $34 $141  44 

4,779    "         4  "        24 114  l.'.l 

7.319    "      box       "       20 146  3S 

J^  Inspection 2  03 

GOO  pieces  boards,  17c 103  00 

$506  54 

Cr. 

By  deduction  for  cash $    5  00 

Aug.  25.     By  cash 2.">0  00 

Your  note  due  Nov.  3S. ..  2.jl  54 

$.506  54 

"Rpc'd  payment  as  above.  E.  B.  Wheeler, 
Per  Wni.  A.  Craig.  To  be  delivered  to  the 
cars  free  of  charge.     E.  I!.  Wheeler,  Craig. " 

The  memorandum  "To  be  delivered," 
etc..  was  made  after  the  completion  of  the 
sale. 

Before  its  delivery  as  agned  upon,  and 
within  a  short  time  after  and  on  the  day 
of  sale,  the  lumber  was,  witl:out  fault  on 
defendant's  part,  accidentally  consumed 
by  tire. 

The  trial  court  held  that  there  was  no 
i-ontlict  in  the  evidence  as  to  the  delivery  ; 
though  re()uested  to  pass  upon  the  credi 
bility  of  the  witnesses  declined  so  to  do. 

Uefendnnt'.s  counsel  e.tceptcd  to  the  find- 
ing of  fact,  conclusions  of  law.  and  to  the 
refusal  of  the  court  to  pass  upon  the  creil- 
ibility  of  the  witnesses. 

Plaintiff  had  judgment,  the  general  term 
affirmed  thesnme,  and  defendant  appealed. 

William  A.  Beach,  for  appellant.  Wil- 
liam L.  Learned,  for  respondent. 

SELDEN,  J.  There  may  be  some  doubt 
whether  the  parol  evidence  in  regard  to 
the  agreement  to  deliver  the  lumber  was 
admissible,  but  if  it  were  necessary  to  de- 
cide that  question,  I  should  regard  it  as 
admissible,  on  the  ground  that  what  is 
called  the  bill  of  sale  was,  in  substance,  a 
mere  receipt  for  the  purchase-money,  and 
did  nt)t  purport  to  be  a  contract.  (Dunn 
V.Hewitt,  2  Den.ri37;  Blood  v.  Harring- 
ton. 8  Pick.  .")."):.':  FilUins  v.  Whyland,  LM 
N.  Y.  33S.)  If  the  lumber  had  not  been 
paid  for,  and  the  instrument,  omitting  the 
recpii)t.  had  been  signed  by  the  defendant 
and  delivered,  as  a  note  or  memorandum 
of  the  sale,  it  would  then  have  been  the 
evidence  of  a  contiact,  executory  on  one 
l)art  at  least,  and  not  open  to  explana- 
tion by  parol.  I!nt  looking  at  the  whole 
instrument,  I  tliink  it  is  to  be  regarded  as 
n  receipt,  and  not  a  contract,  within  tiie 
cases  above  cited.  Of  course,  in  this 
view,  the  memorandum  at  the  foot  of  the 
hill  is  not  regarded  as  a  part  of  It;  if  it 
were,  its  character  would  be  changed  from 


a  receipt  to  an  executory  contract,  con- 
clusive ufon  the  parties,  except  8o  far  an 
it  was  still  a  receipt.  (Kgleston  v.  Knlck- 
erbacker,  C  Barb.  458.) 

The  point  which  Is  made  upon  the  con- 
tradictory character  of  the  evidence  in  re- 
latiiin  to  th"  contract  to  deliver  the  lum- 
iKT  <m  the  cars,  and  its  sufficiency  to  e«- 
tablish  such  contract,  presents  only  h 
question  of  fact  which  this  court  cannot 
review.  Where  f  lie  finding  of  a  court  or 
referee  upon  a  question  ot  fact  is  anibigu- 
oiiH,  the  evidence  may  be  refcrrccl  to  (or 
the  purpose  of  removing  the  ambiguity, 
but  not  to  revf-rse  or  modify  a  di.stinct 
finding,  or  to  rstablish  an  inde|<endent  fact 
not  found.  ( Hovt  v. 'I'hompson's  Ex'r.. 
T.<  .\.  Y.  210;  Carman  v.  Pultz,  111  id.  .'S.'O; 
Grant  v.  Morse,  22  id.  .■!24 ;  .Sanford  v. 
Railroad  Co.,  2:5  id.  ;J44.)  We  can  no  more 
review  the  decision  of  the  court,  that  the 
testimony  was  not  conllicting,  than  we 
can  the  conclusion  that  it  was  sufficient ; 
an<l  we  can  do  neither  without  making  a 
precedent  which  would  oiien  to  review 
here  the  details  of  the  evidence  in  all  cases. 

But  in  the  view  wliich  I  take  of  tiie  re- 
maining question,  it  becomes  Immaterial 
whctiuT  there  was  a  contract  to  ileliver 
at  the  cars  or  not.  The  lumlier  had  not 
been  actually  delivered,  Ijiit  remained  in 
the  possession  of  the  vendor.  In  the  ab- 
sence of  any  express  contract  to  deliver, 
there  was  an  implied  one  to  deliver  at 
the  yard  of  the  vendor,  when  calle(l  for. 
In  either  case  the  lumber  did  not  remain 
nt  the  risk  of  the  vendor,  if  the  title  did 
not  remain  in  him.  The  risk  attenils  up- 
on the  title,  not  upon  the  possession 
where  there  is  no  special  agreement  upon 
the  subject.  (Tarling  v.  Baxter,  (i  liarn. 
4:  Cress.  SCn ;  Willis  v.  Willis,  ti  Dana.  41t; 
Ilinde  v.  Whitehonse.  7  Kast,  .j.')S ;  .loyce 
V.  .\dams,8  N.  Y.  21tii;  2  Kent  Com. -J!t2, 
41)0:  Noy's  .Maxims,  8S.)  I  entertain  no 
doubt  that  uptm  the  facts  found  In  thie. 
ease,  the  title  was  in  the  vendee.  The 
lumber  was  selected  by  both  parties  and 
designated  as  the  lumber  sidd  to  KImore, 
except  the  six  hundred  pieces  which  were 
selected  by  the  parties,  and  the  jjrecise 
pieces  sold  designated  with  as  much  pre- 
cision as  if  the  purchaser  had  marked  ev- 
ery piece  witli  his  name;  that  which  was 
sold  by  meas\irement  was  inspected  and 
measured,  and  the  (juantity  ascertained  ; 
the  price  for  the  whole  was  agreed  upon 
and  paid  and  a  bill  of  parcels  receiiited 
and  delivered  to  the  purchaser.  These 
facts,  1  think,  vested  the  title  in  the  pur- 
chaser, notwithstanding  the  agreement 
of  the  seller  to  deliver  th<«  lumber  free  of 
charge,  at  the  cars.  "The  sale  of  a  spe- 
cific chattel  passes  the  property  th'-rein  to 
the  venilee  without  delivery."  (Chitty 
Contr.  [sth  .\m.  ed.]  .TJ2.)  "It  is  a  gener- 
al rule  of  the  common  law  that  a  mere 
contract  for  the  sale  of  goods,  where 
nothing  remains  to  be  done  by  the  seller 
before  making  delivery ,  transfers  the  right 
of  property,  although  the  price  has  not 
lieen  jiaid,  nor  the  tiling  sold  delivered  to 
the  purchaser."  (Olypliant  v.  linker.  5 
l)cn.:^^2.)  The  authorities  are  numerous, 
where  the  expression  is  used  that  if  any 
thing  remains  to  be  done  by  the  seller,  the 
title  does   not   pass:  but  the  caeeu  which 


814 


TEKRY  V.  WHEELER. 


are  refprred  to  to  eiistoin  that  position, 
only  K"  tl't"  length  of  showinj;  that  whore 
something  is  to  he  clone  by  the  seller  to 
ascertain  the  identity,  quantity  or  qual- 
ity of  the  artlele  sold,  or  to  put  it  in  tlie 
condition  wliicli  the  terms  ;jf  the  contract 
require,  the  title  does  not  pass.  (2  Kent 
Com.  4!)(i;  Hanson  v.  Meyer,  li  East,  (ji-l; 
Simmons  v.  Swift,  5  Barn.  &  Cress.  S57; 
.Joyce  V.  .'Vdanis,  8  N.  Y.  2!)1 ;  Field  v. 
Moore,  Lalor's  Siip.41S.)  The  list  of  cases 
to  thi.s  effect  might  be  indefinitely  in- 
creased; but  no  case  has  been  referred  to 
by  counsel,  nor  have  I  discovered  any,  in 
which,  where  the  article  sold  was  perfect- 
ly identified  and  paid  for,  it  was  held  that 
u  stipulation  of  the  seller  to  deliver  at  a 
particular  place  prevented  the  title  from 
passing.  If  the  payment  was  to  be  made 
on  or  after  delivery,  at  a  particular  place, 
it  might  fairly  be  inferred  that  the  con- 
tract was  e.xeciitory,  until  such  delivery; 
l(ut  where  the  sale  appears  to  be  abso- 
lute, the  identity  of  tlie  thing  fixed,  and 
the  price  for  it  jmid,  I  see  no  room  for  an 
inference  that  the  property  remains  the 
seller's  merely  because  lie  has  engaged  to 
transport  it  to  a  given  point.  1  tliini:  in 
such  cases  the  property  passea  at  the  time 


of  the  contract,  and  that,  in  carrying  it, 
the  seller  acts  as  bailee,  and  not  as  own- 
er. The  questions  which  arise  in  such 
cases,  as  to  sales,  are  questions  of  inten- 
tion, such  as  arise  In  all  other  cases  of  the 
interpretation  of  contracts;  and  when  the 
facts  are  ascertained,  either  by  the  writ- 
ten agreement  of  the  parties  or  by  thefind- 
ing.s  of  a  court,  as  they  are  here,  they  are 
questions  of  law.  That  the  parties  to  the 
contract  in  this  case  intended  to  pass  tlie 
title  to  the  lumln-r  immediately,  appears 
very  clear;  nor  do  I  suppose  tnat  any  one 
would  question  it,  were  it  not  for  the  ap- 
parent hardship  of  the  case  to  the  pui- 
chaser.  If  the  property,  instead  of  being 
lumber,  had  been  sheep  or  cows,  capable 
of  increase  ( wliicli  follows  thoownership), 
and  there  had  been  a  sudden,  and  large 
increase  to  the  flock  or  drove,  before  they 
could  be  delivered  at  the  point  agreed  up- 
on, I  think  no  one  would  have  said  that 
tlie  defendant  could  have  discharged  his 
obligation  to  deliver,  aud  yet  retained  the 
increase.  Such,  however,  must  be  the 
conclusion,  if  the  plaintiff's  position  is 
maintained.  The  judgment  should  be  re- 
versed, and  a  new  trial  granted. 
All  concur. 


THOMreOX  D.  GAIUJINEU. 


817 


THOMPSON  V.  GARDINER. 

(1  C.  P.  Div.  rr7.) 

Common  Pleas  Division.     June  28,  1876. 

Action  for  not  acrupting  butter  pursu- 
ant to  coiitrjict. 

Tile  cause  vva.s  tried  beforn  Urett,  J.,  at 
the  luHt  spriiifr  flHsize  at  Liverpool.  The 
contract  was  made  by  one  I'rice  actinR  as 
broker  for  the  seller,  and  he  delivered 
notcH  to  both  buyer  and  seller.  Hi>;nin}'  the 
note  which  he  sent  to  the  seller,  but  not 
that  which  he  sent  to  the  buyer.  He,  how- 
ever, entered  the  contract  in  his  book,  in 
wliiuh  he  signed  both  the  bought  and  the 
si)l(l-note.  Thedefendaiit  kept  thebought- 
note  without  complaint  or  remonstrance 
for  two  or  three  weeks;  and,  when  culle<l 
ui)on  to  accept  the  butter,  ho  repudiated 
the  contract,  not  on  the  ground  that  he 
had  not  entered  into  it,  but  on  the  ground 
that  it  was  unsigned,  writing  to  the  bro- 
ker "You  did  not  sign  it." 

It  was  objected,  on  the  part  of  the  de- 
fendant, that  there  was  no  sullicient 
nienioranduiu  of  the  contract  within  the 
Htatute  of  frauds. 

The  learned  judge  ruled  otherwise,  ob- 
serving that,  after  receiving  and  keeping 
the  bought-note,  the  defcntlant  could  not 
allege  that  Price  was  not  an  agent  to 
make  a  niemoranduni ;  and  ho  directed 
judgment  to  be  entered  for  the  plaintiff, 
liut  gave  the  defendant  leave  to  move  to 
enter  judgment  forhim.if  the  court  should 
be  of  o[)inion  that  there  was  no  suHicicnt 
memorandum  within  the  statute. 

Gully  moved  for  judgment  accordingly. 
T.  H.  .fames  shewed  cause. 

The  judgment  of  the  court  (BRETT, 
(JKOVK,  and  ARCHIBALD,  JJ.,)  was  de- 
livered by 

I5HKTT,  J.  This  was  an  action  for  not 
accepting  butterpursuant  to  contract.  It 
was  tried  before  me,  and  I  directed  judg- 
ment to  l)e  entcreil  for  the  plaintiff.  A 
motion  has  been  made  (o  enter  judgment 
for  the  defendant  in  ])ur8iiance  of  leave 
reserved  by  me  for  that  ])urpose,  on  the 
ground  that  there  was  no  evhletice  of  any 
nieaioranduni  of  the  contract  within  the 
Htatute  of  frauds.  The  facts  were  these: 
— The  contract  was  made  with  a  person 
who  must  l<c  taKcn  to  bo  a  l)roUer,  anil 
who  was  acting  for  the  seller  only,  and 
not  for  the  buyer.  The  defendant  agreed 
upon  the  terms  of  sale  with  the  bi'oker. 
These  terms  were  not  disputeil.  If  there 
was  a  sullicient  memorandum  in  writing 
signed  by  or  on  behalf  of  the  party  to  be 
charged,  the  defendant  had  unjustifiably 
refused  to  accept  the  butter.  'J"he  broker 
sent  a  note  of  tlie  contract  to  the  buyer 
and  also  to  the  seller.  He  signed  the  note 
which  was  sent  to  the  seller,  but  he  did 
not  sign  that  which  he  sent  to  the  buyer. 
He.  however,  entered  in  his  broker's  l)ook 
both  the  bought  and  the  sold-nole,  and 
signed  them  both.  The  butter  was  ten- 
dered to  the  defendant  sometime  after  the 
note  was  sent  to  him,  he  having  kept  the 
L.\W  SALIJS — 52 


latter  until  then  without  complaint  or  re- 
mon-<trance.  The  reason  he  assigned  for 
his  refusal  was,  not  that  he  had  n<»t  en- 
tered into  the  contract,  but  that  the  note 
sent  to  him  was  ncjt  sigmd.  I  decline  to 
enter  into  the  terms  of  the  two  notes,  as 
to  which  was  the  bought  and  which  was 
the  sold-note.  The  real  (luestioii  upon 
the  notes  on  this  point  always  turns  on 
the  person  to  whom  the  note  Is  sent.  If 
the  broker  Is  authorized  iiy  the  buyer  to 
make  a  contract,  the  note  sent  by  him  to 
the  seller  is  the  note  which  Is  intended  to 
be  the  bargain,  and  vice  versa.  The  note 
which  was  to  bind  the  defendant  here, 
w;is  the  soldnote.  Wo  are  not  driven  to 
rely  on  the  notes  In  the  broker's  book, 
because  the  note  delivered  to  the  plaintiff 
(if  the  broker  had  authority  to  sign  the 
memoi-;indum)  bindshim.  TheauthoritieH 
areconcbMive  to  show  that  the  broker 
acting  for  one  of  the  contracting  parties, 
making  a  contract  for  the  other,  is  not 
authorized  by  both  to  l>in>l  both.  liut 
the  broker  who  makes  a  contract  for  one 
may  be  authorized  by  that  person  to 
make  and  sign  a  memorandum  of  the  con- 
tract. That  has  frecjuently  been  held. 
The  question  here  is  whether  there  woe 
any  evidence  that  the  broker  was  so  au- 
thorizeil.  The  evirlence  was,  that  a  note 
of  the  bargain  was  sent  to  the  buyer;  and 
that  his  only  objection  was,  not  "that  the 
broker  who  sent  it  had  no  authority  to 
send  it,  or  that  no  such  contract  was 
made,  but  that  the  memorandum  sent  to 
him  was  not  signed.  That  was  ample  ev- 
idence for  the  jury  tli;it  the  dcfiiiilant  rec- 
ognized the  authority  of  the  broker  to 
sign  for  him.  Luckily,  however,  the 
l)r(d<er  did  sign  the  note  which  was  to 
bind  the  defcfidant,  that  is,  the  sold-note. 
Then,  this  further  fact  remains,  that  the 
l)roker  kept  a  book  in  which  both  bought 
and  sold-notes  were  entered  and  signed  by 
him.  1  therefore  think  that,  even  if  the 
signature  to  the  note  sent  to  the  seller 
was  not  sullicient  to  bind  the  buyer,  the 
signature  in  the  broker's  book  was  enough 
to  satisfy  the  statute.  The  broker  being 
a  broker  authorized  to  make  a  memoran- 
dum of  the  contract  on  the  defendant'a 
behalf,  the  entry  in  his  book  was  sutHcient 
eviilence  of  a  memornmlum  of  the  bar- 
gain signed  by  a  duly  authorize<l  agent 
within  the  meaning  of  the  statute  of 
frau<ls  to  bind  the  defendant. 

.My  Ill-other  (irovo  has  doubts,  and 
wishes  me  to  say  that,  in  his  judgment, 
the  fact  of  the  defend;int  keeping  the  note 
sent  to  him  without  objection  was  not 
sullicient  to  show  an  authority  in  the 
broker  to  bind  him.  Hut  lit-  thinks  that, 
inasmuch  as  when  the  defendant  made 
the  ol)jectio!i  heconlined  it  to  saying"  You 
did  not  sign  it, "  he  therehy  admitted  the 
agency  of  tlie  broker  to  make  the  contract 
on  his  behalf.  He  therefore  airrees  with 
me  that  judgment  was  rightly  entered  for 
the  plaintiff. 

My  Brother  Archibald  authorizes  me  to 
say  that  he  concurs  In  the  above  judg- 
ment, and  in  the  reasons  1  hare  given. 

.ludgment  for  the  plaintiff. 


THOMPSON  V.  WEDGE. 


819 


THOMPSON  V.  WEDGE. 

(7  N.  W.  Rep.  560,  50  Wis.  643.) 

Supreme  Court  of  Wisconsin.     Dec.  17,  1880. 

Ai)peal  from  Dodee  county  court. 

Replevin  for  a  cow  and  calf.  Tlie  plain- 
tiff Hold  a  (juantity  of  property  at  pul)lic 
auction.  The  defendant  hid  off  the  cow 
and  calf  at  Kuch  sale  for  $:j7.  The  terms 
of  sale  W(Te  cash  for  all  jjurchases  not  e.\- 
ceedinfj  five  dollars,  and  approved  [>aper 
for  those  exceeding;  that  sum.  After  the 
sale  the  defendant  informed  the  plaintiff 
that  he  nad  not  sufficient  money  with 
him  to|)ayforthe  property,  and  retjuested 
permission  to  take  it  away.  The  [ilaintiff 
Kavesuch  permission  on  defendant's  prom- 
ise to  pay  a  few  days  later,  when  the 
[ilaintiff  should  ro  to  Waupun,  a  few 
miles  distant,  whore  the  defendant  re- 
sided. Nothing  was  said  l)y  the  parties 
concerning  security,  but  the  plaintiff  de- 
livereil  the  i)roperty  to  defendant  without 
further  stiiiulation  or  condition.  The  de- 
fendant failed  to  pay  for  the  proi)erty 
when  the  [)laintiff  called  on  him  at  his 
residence,  tliree  days  after  the  sale,  and 
afterwards  refused  to  deliver  it  to  tlie 
plaintiff  when  the  latter  made  demand 
therefor.  The  cause  was  tried  by  the 
court.  The  county  judge  held,  oh  the 
above  facts,  that  the  title  to  the  proiierty 
passed  to  the  defenilant  by  such  delivery, 
and  gave  judgment  for  a  return  of  the 
property  to  him,  or  for  its  value  in  case 
a  return  cannot  be  had.  The  plaintiff 
appealed  from  the  judgment. 

Eli  Hooker,  (C.  E.  Hooker,  of  counsel.) 
(or  appellant.  H.  W.  Frost,  for  respond- 
ent. 


LYON,  J.  The  plaintiff  delivered  the 
property  in  controversy  to  the  defendant 
unconditionally,  and  gave  him  credit  for 
the  price.  He  waived  the  security  re- 
quired by  the  terms  of  the  auction  sale  by 
making  the  delivery  without  requiring  it. 
He  did  not  expressly  reserve  to  liimseK 
the  title  to  the  property  until  the  pur- 
chase money  should  be  paid,  and  there  is 
nothing  in  the  evidence  tending  to  raise  a 
presumption  that  he  intended  to  do  so. 
Neither  is  there  any  ground  for  claiming 
that  the  defendant  obtained  delivery  of 
the  property  by  fraud.  Thus  we  have 
here  the  simple  case  of  a  sale  of  property 
on  credit,  and  an  absolute  delivery  there- 
of to  the  purchaser.  Sudi  sale  and  deliv- 
ery passes  the  title,  and  it  is  not  divested 
merely  because  tile  purchaser  fails  to  pay 
for  the  property  at  the  stipulated  time. 
If  authoiities  are  required  to  propositions 
so  plain  and  well  established,  the  cases 
cited  in  the  brief  of  counsel  for  defendant, 
and  many  of  those  cited  by  counsel  for 
plaintiff,  abundantly  sustain  the  doctrine. 
To  these  Uiay  lie  addeil  the  late  case  lu 
this  court  of  The  Singer  Manufg  Co.  v. 
Snmmons,  4!>  Wis.  .•'.H;.  .">  N.  \V.  Kep.  78s. 
TliJit  was  a  stronger  case  for  the  plaintiff 
than  fhis.yet  we  held  that  tlie  title  passed. 
.None  of  the  cases  in  this  court,  cited  to 
show  that  the  title  to  the  property  here  in 
controversy  remained  in  the  plaintiff, 
meet  the  conditions  of  this  case,  for  in 
none  of  them  was  credit  eiven  for  the 
price,  and  an  un<|ualllie(l  delivery  of  the 
property  made  to  the  purchaser. 

We  think  the  ruling  v.f  the  learned  coun- 
ty judge,  that  the  title  to  the  cow  and  calf 
pa.ssed  to  the  defendant  by  the  delivery, 
was  correct.  We  must,  therefore,  afUrm 
the  judgment. 


TOWNE  0.  COLLINS. 


821 


TOWNE  V.  COLLINS. 

(14  Mass.  500.) 

Superior  Court  of  Massachusett3.    Essex.    Nov. 
Term,  1785. 

Tills  was  an  action  of  trover  for  oxen. 
One  Hutchins  stole  the  cattle  from  the 
plaintiff  and  sold  them  to  Collins,  who 
was  not  privy  to  the  theft,  nor  had  any 
knowledge  of  their  t)cinf;  the  property  of 
the  plaintiff.  Hutchins  was  afterwards 
convicted  of  the  theft,  and  sentenced,  at 
theinstanceof  the  attorney  general,  to  pay 
threefold  damages  to  the  plaintiff,  accord- 
ing to  the  statute.    Towne  had   no  other 


agency  in  the  prosecatlon,  than  procuring 
the  arrest  of  the  thief  upon  a  warrant, 
and  attending  at  the  trial  as  a  witness, 
upon  being  summoned. 

The  question  referred  to  the  court  was, 
whether  the  conviction  and  Bentence  were 
a  har  to  the  plaintlfl's  recovering  in  this 
action. 

PER  CURIAM,  viz.  CDSHIXG  0.  J.  SAR- 
GEANT  ,  DANA  and  SUM.NER.  justices. 
There  being  no  market  iiEfjt  here,  and 
actual  satisfaction  of  tlie  threefold  dam- 
ages not  having  been  made  to  the  plain- 
tiff; the  conviction  and  sentence  can  be 
no  bar  to  this  action  of  trover. 


TUFTS  V.  GUIFFIN. 


82-T 


TUFTS  V.  GRIFFIN. 

(12  S.  E.  Rep.  68,  107  N.  C.  47.) 

Supreme  Court  of  North  Carolina.    Oct.  27,  1890. 

Appeal  from  superior  court,  Bertie  coun- 
ty :  Wo.MACK.  Judj^e. 

Action  by  Janics  W.  Tufts  again.st  J.  S. 
Griffin  on  a  note  given  by  (iefendant  for 
part  of  a  purcliaise  price  of  aKoda  fountain 
purclia.seil  by  him  of  plaintiff.  Uy  tlie  con- 
tract of  Kale  the  title  to  the  property  solil 
was  not  to  pasn  until  the  entire  price  was 
paid.  The  property  was  destroyed  before 
the  note  matured.  Judjinient  for  plain- 
tiff, and  defendant  ai)i)eals. 

I).  C.  Winston,  for  plaintiff.  W.  L.  Will- 
iams, for  defendant. 

SiiKPHKRD,  J.  This  is  a  case  of  the  first 
impression  in  this  state.  We  have  here  an 
absolute  promise  of  the  defendant  to  pay 
the  plaintiff  a  certain  sum,  it  beiiiKtlie  bal- 
ance of  the  purchase  money  due  the  plaintiff 
upon  the  sale  of  a  soda  apparatus  to  tlie 
defendant.  The  sale  was  a  conditional  one, 
(see  Clayton  v.  Hester,  SO  N.  C.  27.".:  Frick 
V.  Hllliard,!l.")N.C.  117",  and thecasoscited.) 
and,  uiKler  the  contract,  the  defendant 
took  the  apparatus  into  his  possession, 
and  used  it  in  all  respects  as  his  own. 
Without  any  negligence  on  the  part  of  the 
defendant  and  before  any  default  in  the 
payment  of  the  purchase  money,  the  prop- 
erty was  destroyed  by  tire.  The  question 
is,  who  shall  bear  the  loss?  The  defend- 
ant insists  that  it  should  fall  upon  the 
plaintiff  t)eca  use  the  transact  i<m  amounted 
to  nothing  more  than  an  executory  agree- 
ment to  sell,  and  that,  inasmuch  as  the 
plaintiff  cannot  now  perform  the  con- 
tract, the  defendant  should  not  be  com- 
pelled to  pay.  It  is  very  true  that  such 
contracts  are  sometimes  called  "execu- 
tory," (as  in  the  case  of  Ellison  v.  Jones, 
4  Ired.  4S,J  and  the  vendee  is  also  termed  a 
"bailee,"  (Ferry  v.  Young,  10.5  N.  ('.  4(jG,  IJ' 
S.  K.  Hep.  511,)  but  it  must  be  observed 
that  these  ex|)ressions  are  used  in  reference 
to  the  strict,  legal  title  to  the  i)roperty, 
and  they  can  therefore  have  no  influence 
in  the  determination  of  the  present  (jues- 
tion,  which  is  purely  one  of  considerations 
for  an  absolute  promise  to  pay.  There- 
cent  decision  in  Burnley  v.  Tufts,  66  Miss. 
49,  5  South.  Re[).  627,  is  directly  in  point. 
There,  it  seems  that  this  same  plaintiff 
sold  a  soda  apparatus  under  a  contract 
precisely  similar  to  this,  and  the  property 
was  destroyed,  as  in  this  case,  after  some 
of  the  notes  had  been  paid,  and  before  the 
maturity  of  the  others.  The  court  decided 
tliat  the  plaintiff  was  entitled  to  recover 
the  amount  due  upon  the  reuiaining  notes. 
As  we  entirely  concur  in  the  reasoning  up- 
on which  the  decision  is  based,  we  will  re- 
produce a  part  of  the  language  of  the 
opinion.    The  court  says:   "Burnley   un- . 


conditionally  and  absolntely  promised  to 
pay  a  certain  sum  for  tlie  property,  the 
p<»ssession  (jf  which  he  receive<l  fr<jm  Tufts. 
The  fact  that  the  proiierty  has  been  de- 
stroyed while  in  bis  custody,  and  before 
the  time  for  the  |)ayment  of  the  note  last 
due,  on  payment  of  which  only  his  right 
to  the  legal  title  of  tlie  property  would 
have  accrued,  does  not  relieve  him  of  pay- 
ment of  the  price  agreed  on.  He  got  ex- 
actly what  he  contracted  for, — viz.,  the 
possession  of  the  property,  and  the  right 
to  acijuire  an  absolute  title  by  payment  of 
the  agreed  price.  The  transaction  was 
something  more  than  an  executory  condi- 
tional sale.  The  seller  had  done  all  he 
was  to  do  except  to  receive  the  purchase 
price.  The  purchaser  had  received  all  that 
he  was  to  receive  as  the  consideration  of 
his  promises  to  pay.  The  incpiiry  is  not 
whether,  if  hchad  foreseen  the  contingency 
which  has  occurred,  he  would  have  pro- 
vided against  it,  nor  whether  lie  might 
have  made  a  more  prudent  contract;  but 
it  is  whether  by  the  contract  he  has  made 
his  promise  absolute  or  conditional.  The 
contract  was  a  lawful  one,  and,  as  we 
have  said,  imposed  ujion  the  buyer  an  ab- 
solute obligation  to  pay.  To  relieve  him 
from  this  ottligation,  the  court  must  make 
a  new  agreement  for  the  parties,  instead 
of  enforcing  the  one  made,  which  it  cannot 
do."  As  is  said  in  the  foregoing  extract, 
the  vendor  has  done  all  tliat  he  was  re- 
quired to  do.  and  the  transaction 
amounted  to  "a  conditional  sale  to  be  de- 
feate<i  upon  the  non-performance  of  the 
conditions.  •  •  •  The  vendee  hail  an 
interest  in  the  property  which  he  could 
convey,  and  which  was  attachable  by  his 
creditors,  and  which  could  be  ripened  into 
an  absolute  title  bv  thejierformance  of  the 
conditions."  1  Whart.  Cont.  §  617.  The 
vendee  had  the  actual,  legal,  and  rightful 
possession  with  a  right  of  proiierty  upon 
the  jiayment  of  the  money.  Vincent  v. 
Cornell,  13  Pick.  2'.)6.  The  vendor  could 
not  have  interfered  with  this  possession 
"until  a  failure  to  perform  the  conditions.  " 
Newhall  v.  Kingsbury,  i:!l  Mass.  44.5. 
Having  acquired  these  rights,  under  the 
contracts,  and  the  property  having  been 
subji-cted  to  the  risks  incident  to  the  exer- 
cise of  the  exclusive  right  of  possession,  it 
would  seem  against  natural  justice  to  say 
that  there  was  no  consideration  for  the 
promise,  and  that  the  loss  should  fall  up- 
on the  plaintiff.  The  case  of  Swallow  v. 
Kniery,  111  Mass.  3.56.  cited  by  the  defend- 
ant, may,  perhaps,  be  distinguished  from 
ours,  because  it  was  agreed  that,  upon  the 
payment  of  the  jirice,  the  vendor  was  to 
execute  a  bill  of  sale  to  the  vendee.  How- 
ever this  may  be.  we  think  that  the  prin- 
ciples enunciated  in  Burnley  v.  Tufts,  su- 
pra, are  better  sustained,  both  by  reason 
and  authority,  and  we  therefore  atltrm 
the  judgment  of  the  court  below.  No  ei- 
ror. 


I 


TUFTS  c.  SVL\'ESTEU. 


825 


TUFTS  V.  SYLVESTER. 

(9  At).  Rep.  3.57,  79  Me.  213.) 

Supreme  Judicial  Court  of  Maine.     March  1,  1887. 

On  report  from  Biipreme  judicial  court. 
Friiiililiii  county. 

Trover  by  tlie  vendor  of  nicrcluindise 
aKuiiiHt  the  messenger  of  llif  iiiHolvont 
veiidee.     The  opinion  states  tlie  facts. 

S.  Clifford  rSe'eher,  for  plaintiff.  H.  L. 
Whitcoinb,  for  defendant. 


PETERS,  C.  J.  The  plaintiff  sold  a  bill 
of  goods  to  beshippe(lat  15<iKtou  to  the 
buyer  at  Farminjiton,  in  this  stale.  The 
buyer,  becoming  insolvent  after  the  pur- 
chase, conntennandeil  the  order,  but  not 
in  Hcasi>n  to  stop  the  goods.  Before  the 
goods  came,  he  had  gone  into  insolvency, 
and  a  messenger  had  taken  possession  of 
his  property.  An  exiii-esa  company  bring- 
ing the  goods  tendered  them  to  the  buyer, 
who  refused  to  receive  them,  but  the  mes- 
senger accepted  the  goods  from  the  car- 
rier, paying  his  charges  tliereon.  Alter 
this,  but  before  an  assignee  was  appoint- 
ed, the  seller  made  a  demand  upon  both 
the  carrier  and  the  messenger,  attempting 
til  reclaim  his  goods.  The  (luestion,  upon 
these  facts,  is  whether  tliegoods  were  sea- 
sonably stopped  in  transitu  to  preserve 
the  plaintifl's  Uen  thereon.  We  think 
they  were.  The  right  of  stoppage  in 
transitu  is  favored  by  the  law.  It  is 
clear  that  the  goods  did  not  go  into  the 
buyer's  possession.  He  refused  to  receive 
them.  lie  had  a  moral  and  legal  right  to 
do  so.  Such  an  act  is  commended  by  ju- 
rists and  judges.  He  in  this  way  makes 
re|)aration  to  a  confiding  vendor.  "  He 
may  refuse  to  take  possession,"  says  Mr. 
Renjamin,  "and  thus  leave  unimpairetl  the 
right  of  stopi)age  in  transitu,  unless  the 
vendor  be  anticipated  in  getting  posses- 
sion by  the  assignees  of  the  buyer."  Benj. 
Sales.  §  S5S.  In  (irout  v.  Hill,  4  Gray.  JtOl, 
Slia w,  C.  J.,  says:  "  Where  a  purchaser  of 
goods  on  credit  tinds    that  he  shall  not  be 


able  to  i)a.v  for  them,  and  gives  notice 
thereof  to  the  venilor,  and  leaves  the 
goods  in  [nisseKhion  of  any  person,  when 
they  arrive,  for  the  use  of  the  vendor,  and 
the  vendor  on  such  noticeexpre.<sly  or  tac- 
itly assents  to  it,  it  is  a  good  stoppage  in 
transitu,  although  the  bankruptcy  of  tho 
vendee  ijitervene.  "  See  same  case  at  page 
.'!()!(;  1  Pars.  Coat.  •.V.ll!,  and  eases. 

The  decision  of  the  case,  then,  turns  up- 
on the  questioii  whether  the  messenger 
could  accept  the  goods,  and  terminate  the 
lien  of  the  vendor.  Wo  do  not  find  any 
authority  for  It.  A  bankruptcy  messen- 
ger iicts  in  a  passive  capacity  ;  Is  Intrust- 
ed with  no  discretionary  powers;  acts 
under  mandate  of  court,  or  does  certain 
things  particularly  pres<-ribed  by  the  law 
which  creates  the  office;  is  mostly  a  keep- 
er or  defender  of  property, — a  custodian 
until  an  assignee  comes;  and  hecnn  nei- 
ther add  to  nor  take  from  the  bankrupt's 
estate.  He  is  to  take  possession  of  the 
"estate"  of  the  insolvent.  These  goods 
had  not  become  a  part  of  the  estate.  He 
was  not  at  liberty  to  atlirm  or  disalflrm 
any  act  of  the  insolvent.  The  law  im- 
poses on  him  no  such  responsibility. 
Chanceller  Kent  says  that  the  transit  la 
not  ended  while  the  goods  are  in  the  hands 
of  a  carrier  or  middle-man.  A  messenger 
has  no  greater  authority,  ex  officio,  than 
a  middle-man,  excepting  as  the  insolvent 
law  expressly  piescribes.  In  Hilliard's 
Bankruptc3'  (pajte  101 1  the  otlice  of  a  mes- 
senger is  likeniMl  to  that  of  a  sheriff  under 
a  writ.  He  becomes  merely  the  recipient 
of  propert.v.  The  title  of  tin-  assignee, 
when  appointed,  dates  ()ack  of  the  ap- 
pointment of  a  messenger.  ITntil  ap- 
pointment of  assignee,  the  liankrupt  him- 
self is  a  proi)er  person  to  tender  money  for 
the  redemi)tion  of  lands  sold  for  taxes. 
Hampton  v.  liouse,  "J^  Wall.  "Jli^.  See  .Ste- 
vens V.  Palmer,  ]•_•  Mete.  4(54.  The  case 
cited  by  the  plaintiff.  Sutro  v.  Holle,  2 
Neb.  1H(1.  supports  his  contention. 

Defendant  defaulted. 

WALTON,  VIi{GIN,  LIBHEY.  EMERY, 
and  HASKELL,  J  J.,  concurred. 


TUTIIILL  V.  SKIDMORE. 


827 


TUTHILL  et  al.  v.  SKIDMORE  et  aL 

(2r.  N.  E.  Rep.  348,  124  N.  Y.  US.) 

Court  of  Appeals  of  New  York,  Second  Division. 
Jan.  14,  1S91. 

ApiX'al  from  a  jiidprnient  of  the  Reneral 
term  of  tlie  kccdiiiI  jiKlicitil  (iei>artriient 
aftiriiiing  a  juilK'neiit  fur  the  plaiiitiffH  en- 
tered on  a  verdict  directed  at  circuit.  Sep- 
tember 11,  ISSG,  llie  (jlaintiffs.  under  tlirir 
tirm  name  of  Ellswortli  Tuthill  &  Co..  and 
Walter  E.  Lawton,  doing  buisinesH  under 
Ilie  name  of  Eawton  I5ros.,  entered  into 
the  f()ll(j\vinf5  written  contract:  "Septem- 
ber 11,  INSC.  Sold  for  account  of  Messrs. 
Kllswoilli  Tiitiiill  &  Co.  to  Messrs.  Lawton 
r.rotliers.  New  Yoriv,  five  hundred  tons 
Hellers'  usual  good  malie  platform-dried 
lisli  scrap,  not  treated  with  acids,  of  this 
season's  make,  to  be  ready  for  delivery  be- 
fore dose  of  sellers'  works,  at  ?lN  per  ton, 
of  L',(l(IO  lbs.,  actual  weight  in  bulk,  F.  O. 
1?.  sellers'  factory,  Promised  Land,  Long 
Island.  Terms:  Payment  by  liuyers' 
notes  at  four  months,  with  interest  added 
at  a  rate  of  si.\  per  cent,  per  annum  from 
date  of  delivery  on  i)resentatinn  bills  of 
lading,  invoice,  weigher's  return,  and 
StilUvell  &  (iladding's  certificate  of  moist- 
ure. If  scrap  removed  before  closing  sell- 
ers' factory  this  fall,  or  if  scrap  is  not  re- 
moved before  such  time,  buyers  are  to  give 
their  notes,  bearing  same  interest,  for  an 
approximate  amount,  bearing  date  of 
Buch  closing.  Buyers  to  have  privilege  of 
leaving  scrap  at  their  own  risk,  free  of 
charge  for  storage,  till  opening  of  fishing 
tieason  of  spring,  ISST,  provided,  if  they  re- 
quire any  scrap  between  such  closing  and 
opening,  buyers  are  to  pay  thirty-five 
cents  per  ton  for  loading.  Scrap  guaran- 
tied not  to  e.xceed  twelve  per  cent,  moist- 
ure. Stillwell  &  Gladding's  analysis  from 
samples  drawn  in  the  usual  way.  Scraps 
to  be  in  good  order  andcon<lition.  "  From 
the  <late  of  this  contract  to  the  date  of  the 
trial  of  this  action,  (October  2.5,  IssT.)  the 
plaintiffs,  at  all  times,  had  on  hand  at 
their  factory  at  I'romised  Land.  L.  L, 
more  than  "HlOtons  of  fish  scrap  of  the  kind 
and  quality  mentioned  in  the  contract, 
but  neither  the  (|uantity  sold  nor  any  part 
of  it  was  ever  set  apart  for  the  vendee. 
November  V2,  ISMi,  the  vendee  gave  the 
vendors,  towards  the  purchase  price,  three 
promissory  notes,  signed  by  the  purchaser. 
and  |>ayable  to  the  order  of  the  sellers,  of 
the  dates,  for  the  amounts,  and  due,  as  fol- 
low s: 


Novenib  T  12.  ls86..   $.5,000  Foor  i 
19.     ••         S.M  00 

26.    "     I  $;i  000 


nths  Mnrch  in.  18S7 


The  purchase  price  was  $14,000,  and, 
after  deducting  these  notes,  $1,000  re- 
mained, which  was  never  paid,  nor  was  a 
note  given  for  it.  These  notes  were  all 
dishonored,  and  have  never  been  paid,  nor 
has  any  part  of  the  purchase  price  of  the 
property.  About  the  1st  of  December, 
1S8(>,  the  plaintiffs  sent  the  purchaser  the 
following  receipt:    "Ellsworth  Tuthill   & 


Co.,  Manufacturers  of  Menhaden  Oil  and 
Ouano.  Factory  at  Promised  Land,  L.  I. 
Promised  Land,  \.  Y.,  Nov.  l'.',  1KS6. 
We  hereby  certify  that  we  hold  five  hun- 
dred (oilO(  tons  o(  platform-dried  lish 
scrap,  of  good  quality,  and  in  good  condi- 
tion, in  bulk,  subject  to  the  order  of 
.Messrs.  Lawton  Bros.,  in  our  factory  ut 
Promised  Land,  Long  Island,  Suffolk 
county,  N.  Y.,  as  per  terms  of  contract. 
Dated  Sei)tcnilier  Ulh.  Ei,i-swonin  Tit- 
nil.l.  &  Co. "  March  24,  ls^7,  .Joseph  L. 
Morton  began  an  action  in  the  supreme 
court  against  Waller  E.  Lawt<jn  for  the 
recovery  of  money,  in  which  an  attach- 
ment was  issued,  by  virtue  whereof,  March 
2S,  issT,  the  defendant  Skidmore,  as  sher- 
iff, and  the  defendant  Hand,  as  his  deputy, 
levierl  upon  and  seized  five  hundred  tons 
(jf  fish  scrap  then  stored  at  the  ])laintifrs' 
factory.  The  (juantity  attached  was  not 
separated  from  a  larger  (luantity  of  which 
it  was  a  part,  and  was  never  renioveil 
from  the  plaintiffs'  premises.  June  15, 
1S.S7,  Morton  recovered  a  judgment  against 
Lawton  in  that  action  for $22.020. Ofi,  which 
was  entered  in  the  office  of  the  clerk 
of  the  city  and  county  of  New  York,  a 
transcript  of  which  was  duly  filed, and  the 
judgment  duly  docketed  June  27,  ls.s7,  in 
the  ollice  of  the  clerk  of  the  county  of  Suf- 
folk. May  l:!,  1SS7,  the  plaintiffs  demand- 
ed of  the  defendants  that  they  release  the 
attachment,  and  surrender  the  property 
to  them,  wiiicli  was  refu.sed.  and  on  the 
ne.Nt  day  this  action  in  replevin  for  the  re- 
covery of  the  property  was  begun.  Upon 
the  trial,  each  party  asked  that  a  verdict 
be  directed  in  his  favor,  neither  claiming 
that  there  was  any  question  of  fact  for  the 
jury.  A  verdict  was  directed  for  the  i)lain- 
tiffs,  upon  which  a  juilgnient  was  entered, 
which  was  alHrmeil  at  general  term. 

Ahram  Kilns',  for  n[)pellant8.  Thomas 
Yuung,  for  respondents. 

FoLLKTT,  C.  J.,  [after  stntinf^  the  fiirts 
as  above.)  It  will  be  assumed  that  the 
title  to  the  propert.v  passed  to  the  vendee, 
which  is  the  most  favorable  view  which 
can  be  taken  of  thecase  forthe  defendants. 
Permitting  commercial  jjaper  to  be  dis- 
honored liy  one  engaged  in  commerce,  and 
his  property  tobeattached  in  an  action  In 
which  judgment  is  subsequently  recovered 
by  default,  is  evidence,  and.  if  unexplained, 
is  i>roof,  of  insolvenc.v.  Brown  v.  .\Iont- 
gomerv,  20  N.  Y.  2^7:  Booth  v.  I'owers,  .'>♦! 
N.  Y.  22,  .'52:  Abb.  Tr.  Ev.  OKI.  Neither 
party  asserting  at  the  trial  that  I..awtou's 
solvency  was  a  question  of  fact  for  the 
jury,  the  court  was  justitied  in  holding,  as 
a  question  of  law.  that  he  was  insolvent. 
When  the  price  of  goods  sold  on  credit  is 
due  anil  unpaid,  anil  the  vende«>  becomes 
insolvent  liefore  obtaining  possession  of 
them,  the  vendor's  right  to  the  property 
is  often  cilled  a  "lien."  but  it  is  grc'ater 
than  a  lien.  In  the  absence  of  an  express 
power,  the  lienor  usually  cannot  transfer 
the  title  to  the  property  on  which  the  lien 
exists  by  a  sale  of  it  to  oneha  ving  not  ice  of 
theexttiitof  his  right, but  he  must  proceed 
by  fori'clo^ure.  When  a  vendor  rightfully 
stops  goods  ///  tr:itisltii  or  retains  them  be- 
fore tninsitiis  has  liegun.  he  can,  by  a  sale 
made,  on  notice  to  the  vendee,  vest  a  pur- 


828 


TUTHILL  V.  SKIDMORE. 


chaser  with  a  good  title.  Diistan  v.  McAn- 
drew,  44  N.  Y.  72.  His  riRlit  is  very  nearly 
that  of  a  pledgee,  with  power  to  sell  at  pri- 
vate sale  in  case  ot  default.  Bloxani  v. 
Sanders,  4  Barn.  &  C.  941;  Bloxani  v.Mor- 
ley.  Id.  !).")!;  Milgate  v.  Kebble,  3  Man. 
&  G.  100;  Andenreid  v.  IJandall,  3  Cliff,  '.m, 
106;  Blaekb. Sales. (2d  Ed.)44r>,454.459;  Benj. 
Sales,  (Corl)in's  Ed.)  §  12S0;  Jones.  Liens, 
§  ,S02.  The  vendee  having  beeonie  in.s(jlv- 
ent,  and  refused  payment  of  the  notes 
given  for  the  purchase  price  of  the  prop- 
erty which  reniaine<l  in  the  vendor's  pos- 
session, his  right  to  retain  it  as  security 
for  the  price  was  revived  as  against  the 
vendee  and  his  attaching  creditor.  Ar- 
nold V.  Delano,  4  Cusli.  33;  Hasl^ell  v.  Bice, 
11  Gray, 240;  Milliken  v.  Warren,  57  Me.  46; 
Clark  V.  Draper,  19  N.  H.  419;  Bloxam  v. 
Sanders,  4  Barn.  &  C.941;  Bloxani  v.  Mor- 
ley.  Id.  9.")1;  Hamburger  v.  Rodman,  9 
Daly,  93;  Beni.  Sales,  (Bennett's  Ed.)  § 
S25;  2  Benj.  Sales,  (Corbin's  Ed.)  §  1227; 
Story,  Sales,  §  '285;  Blaekb.  Sales,  454. 

The  plaintiffs  allege  in  their  complaint 
tliat  tlieyown  the  pi'operty,and  also  that 
they  "had  a  special  property  therein, — to- 
wit,  a  lien  for  unpaid  purchase  money," — 
both  of  which  allegations  the  defendants 
specifically  denied.  It  is  now  insisted,  as 
it  was  at  the  trial,  by  the  defendants  that 
theallegation  in  respect  to  the  special  prop- 
erty is  not  a  compliance  with  section  1720 
of  the  Code  of  Civil  Procedure,  which  pro- 
vides that  when  "the  right  of  action  or 
defense  restsupoiia  right  of  possession,  by 
virtue  of  a  special  property,  in  which  case 
tlie  pleading  must  set  forth  the  facts  up- 
on which  the  special  property  depends,  so 
as  to  show  that  at  tlie  time  when  the  ac- 
tion was  commenced,  or  tha  chattel  re- 
plevied, as  the  case  may  be,  the  partj' 
pleading,  or  the  third  person,  was  entitled 
to  the  possession  of  the  chattel.  "  The  de- 
fendants not  having  moved  to  make  the 
complaint  more  definite  and  certain,  and 
it  attirniatively  appearing  that  they 
were  neitlier  harmed  nor  misled  hy  the 
omission  to  set  forth  all  of  the  facts  out 
of  which  the  special  prt)perty  arose,  the 
judgment  will  not  he  reversed  for  this  de- 
fect in  the  complaint. 

When  the  trial  began,  it  was  moved  In 
behalf  of  the  defendants  that  the  plain- 
tiffs be  compelled  to  elect  whether  they 
would  seek  to  recover  on  the  ground  that 
they    owned    the    property,    or    on     the 


ground  that  they  had  a  lien  thereon  for 
unpaid  purchase  money.  To  this  request 
the  court  replied  :  "I  will  hear  the  eviden<-e 
first  before  1  compel  him  to  do  that. "  To 
this  remark  the  defendants  excepted.  At 
the  close  of  the  plaintiffs'  case,  the  defend- 
ants offering  no  evidence,  both  parties 
asked  the  court  to  direct  a  verdict.  The 
object  of  requiring  plaintiffs  to  elect  be- 
tween inconsistent  causes  of  action  is  to 
simplify  the  issues  of  fact,  so  that  they 
may  be  intelligibly  and  fairly  tried,  but  it 
is  plain  in  this  case  that  the  defendants 
were  not  misled  nor  harmed  by  the  refusal 
of  the  court  to  compel  an  election.  The 
plaintiffs'  allegation  that  they  owned  the 
property,  and  their  allegation  that  they 
had  a  lien  thereon  for  unpaid  purchase 
money,  areiuconsistent.  Hudson  v.  Swan, 
83  N.  Y.  552.  But  when,  as  in  the  case  at 
bar,  the  inconsistency  plainly  appears  on 
the  face  of  the  complaint,  tlie  defendants 
should,  before  answering,  move  that  the 
plaintiffs  beeompelled  to  elect.  Cassidy  v. 
Daly, 11  Wkly.  Dig. '222.  If  in  such  a  case  the 
defendant  lies  by  until  the  trial,  and  then 
moves,  the  court  may,  in  its  discretion, 
wait  nntil  jiart  or  all  of  the  evidence  is 
taken  before  deciding  the  motion,  (South- 
worth  V.  Bennett,  58  N.  Y.  (159,)  and  its  de- 
nial is  so  far  diseretionarv  (Kerr  v.  Havs, 
35  N.  Y.  331,  336;  People' v.  Tweed,  63  N. 
Y.  194)  that  it  will  not  be  reviewed  when 
it  appears  that  the  defendant  was  not 
harmed. 

It  is  also  urged,  on  the  authority  ot 
Hudson  v.  Swan,  supra,  and  the  cases 
therein  cited,  that  the  plaintiffs,  by  alleg- 
ing in  their  complaint  and  asserting  at 
the  trial  absolute  ownership  of  the  prop- 
erty, anil  also  a  special  interest  in  or  lien 
upon  it,  waived  theirspecialinterestorlien, 
if  any  they  had,  and  cati  no  trecover  without 
establishing  ownership.  In  the  case  cited 
the  facts  alleged  by  the  plaintiff  to  estab- 
lish ownership  were  inconsistent  with 
those  upon  which  he  relied  to  establish 
a  lien,  which  is  not  the  fact  in  the  case  at 
bar.  As  has  been  shown,  the  plaintiffs' 
interest  was  more  than  that  of  mere  lien- 
ors, and,  there  being  no  dispute  about  the 
facts,  the  inconsistency  relating  wholly  to 
the  legal  conclusions  to  bedrawn  from  the 
agreed  facts,  the  case  cited  is  not  control- 
ling. The  judgment  should  be  affirmed 
with  costs.  All  concur,  except  Brown,  J., 
not  sitting. 


TWYXE'S  CASE. 


831 


TWYNE'S  CASE.  I 

(3  Coke,  80.) 
Mich.  44  Eliz.     In  the  Star  Chamber.  , 

In  aninfurinntion  by  Coke,  theeiueen'Hat- 
tornoy-jieneral,  UKi>iiiNt  Twyne,  of  llainp-j 
Hliire,  in  the  Htar-cliunii)er,i  for  making 
anil  publiHiiing  of  a  fraudulent  wift  of 
CooflM.  Tlie  (rase  on  the  ntat.  of  V.i  liliz. 
c.  .">,  was  Hucli :  fierce  was  imlctitcil  to 
Twyne  in  ,£-tO(),  and  wan  imiehted  alno  to 
C.  in  tiillO.  ('.  l)rouKlit  an  action  of  del)t 
aeainst  Fierce,  and  pending  tlie  writ, 
fierce,  helnu;  posHeHsed  of  goodH  and  cliat- 
tel.s  of  the  value  of  H'MH).  \n  Hecret  made  a 
Heneral  deed  of  sift  of  all  his  noods  andj 
chattels,  real  and  [lersonnl  wliatsoever, 
to  Twyne, in  satisfaction  of  his  debt;  not- 
withstanding that  fierce  continued  in 
possession  of  the  said  ;;oods,  and  some  of 
them  he  sold  ;  and  he  sliore  the  sheeii,  and 
marked  them  with  his  own  mark;  anil 
after  wnrds(;.  had  judir  men  t  against  fierce, 
and  had  a  fieri  facias  directed  to  the  sher- 
iff of  Sonthanipton,  who  hy  force  of  the 
said  writ  came  to  make  execution  of  the 
said  goods;  hut  divers  persons,  by  the 
command  of  the  said  Twyne,  did  with 
force  resist  the  said  slieriff,  claiming  them 
to  be  the  goods  of  the  said  Twyne  by 
force  of  the  said  gift;  and  openly  declared 
by  the  commandment  of  Twyne,  that  it 
was  a  good  gift,  and  niade  on  a  good  and 
lawful  consideration.  And  whether  this 
gift,  on  the  whole  matter  was  frauducnt 
and  of  no  effect  by  the  said  act  of^  13  Eliz. 
or  not,  was  the  question.  And  it  was  re- 
solved by  Sir  Thomas  Edgerton,  lord 
kee[)er  of  the  great  seal,  and  by  the  (.'hief 
Justice  fophatn  and  .\nilerson,  and  the 
whole  court  of  star-chamber,  that  this 
gift  was  fraudulent,  within  the  stat.  of  l;{ 
Eliz.  And  in  this  case  divers  points  were 
resolved: 

1.  That  this  gift  had  the  signs  and 
marks  of  fraud,  because  the  gift  is  general, 
without  exception  of  his-'  apparel,  or  of 
anything  of  necessity  ;  for  it  is  commonly 
said,  "quod*  dolus  versatur  in  generali- 
bU8.  " 

•Chamberlain  v.  Twyne,  Moore,  638;  Rex  v. 
Earl  of  Nottingham,  Lane,  44,  45,  47:  Co.  Litt.  3b, 
76a,  290a;  Edf<bury  v.  Rosindal,  3  Keb.  259;  See 
the  Stat.  27  Eliz.  c.  4.  [ 

'Oooch's  Ca'<e,5  Coke,  60a,  b;  Packman's  Case,  [ 
6  Coke,  IHb;  Case  of  Chancellor,  etc.,  uf  University 
of  Oxford,  10  Coke,  .50b;  3  Inst.  1.52;  Co.  Litt.  3b, 
70a,  2y0a,  b;  13  Eliz.  c.  5;  Crcswell   i'.  Cokes,  2 
Leon,   8,   9;  Pendleton    v.    Ounston,   1    Leon.   47; 
Stamford's  Case,  3  Leon.  223;  Carter  v.  Clavcole, 
1  Leon.  308,  ;i09;  Case  No.  Si,  3  Leon.  ,57;  Turvil  v.  1 
Tipper,  Latch,  222;  Turbervill  v.  Tipper,  2  Rolle,  | 
493;  Paston    v.    Lea,    Palmer,   415;  Brunkhorne's  i 
Case,  Cro.  Eliz.  2:i3,  2:H;  Darrel  v.  Wilson,  Id.  (H5;  ' 
Bethel   v.    Stanhope,    Id.  810;  Hawes   v.  Loader, 
Cro.  Jac.  270,  371;  3  Dver,  295,  pi.  17;  Creswell  v.  ' 
Cokes,  Id.  351,  pi.  23;  Stone  v.  Grubham,  3  Bulst.  I 
220;  Rast.  Ent.  207b;  Rex  v.  Earl  of  Nottingham, 
Lane,  47;  Kitchin  v.  Calvert,  Id.  103;  Humbcrton 
v.    Howgil,    Hob.   72b;    Id.   KVl;    Chamberlain    v. 
Twvne,    Mooro.   038;  Doct.    Plao.   200;  Haws   v. 
Loader,  Yelv.  196,  197, 1  Brownl.  &  U.  HI ;  Co.  Ent. 
IU2a. 

'Whittle  V.  Weston,  Godb.  398;  Englefleld's 
Case,  Moore,  321. 

'Stone  V.  Grubham,  2  Bulst.  236;  Doddington's 
Case,  3  Coke,  34a ;  Warren  v.  Smith,  1  Rolle,  157. 


2.  The  donor  continued  in  posResBlon, 
and  used  them  as  his  own;  and  by  reason 
thereof  he  traded  and  traflicked  with 
others,  and  defrauded  and   deceived  them. 

3.  Jt  was  made  in  secret,  "et  dona  clan- 
destinn  sunt  semper  suspiciosa." 

4.  It  was  niadn  pending  the  writ. 

5.  Here  was  a  trust  between  the  parties, 
for  the  donor  possessed  all, and  used  them 
as  his  proper  goods,  and  fraud  is  always 
apparelled  and  clad  with  a  crust,  and  a 
trust  is  the  cover  of  fraud. 

<i.  The  deed  contains,  that  the  gift  wa8 
made  honestly,  truly  and  bona  fide;  "et 
cIhusuIu!  inconsuet' semper  inducunt  ruh- 
picionem. " 

.Secondly,  it  was  resolved,  that  notwith- 
standing Iiero  wiis  a  true  debt  due  to 
Twyne,  anil  a  good  consideration  of  the 
gift,  yet  it  was  not  within  the  proviso  of 
the  said  act  of  13  Eliz.,  by  which  it  is  pro- 
vided, that  the  said  act  shall  not  extend 
to  any  estate  or  interest  in  lands,  &c., 
goods  or  chattels,  made  on  a  good  con- 
sideration, and  bona  fide;  for  although  it 
is  on  a  true  and  good  eousideration,  yet 
it  is  not  bona  tide,  lor  no  gift  shall  be 
deemed  to  be  bona  fide  within  the  said 
proviso  which  is  accompanied  with  any 
trust.  As  if  a  man  be  indebted  to  five  sev- 
eral persons  in  the  several  sums  of  .£20, 
and  hath  goods  of  the  value  of  £'J0, 
and  makes  a  gift  of  all  his  goods  to  one 
of  them  in  satisfaction  of  his  debt,  but 
there  is  a  trust  between  them,  that  the 
donee  shall  deal''  favorably  with  him  in 
regard  of  his  poor  estate,  either  to  permit 
the  donor,  or  some  other  for  him.  or  for 
his  benefit,  to  use  or  have  possession  of 
them,  and  is  c(»ntented  that  he  shall  pay 
him  his  debt  when  he  is  able,  this  shall  not 
be  called  bona  fide  within  the  said  proviso; 
for  the  proviso  saith  on  a  good  consider- 
ation, and  bona  fide;  so  a  good  consider- 
ation does  not  suHice.  if  it  be  not  also 
bona  fide.  And  therefore,  render,  when 
any  gift  sliall  be  to  you  in  satisfaction  of 
a  debt,  by  one  who  is  indebted  to  others 
also;  1st,  Let  it  l)e  made  in  a  public  man- 
ner, and  before  the  neighbors,  and  not  in 
private,  for  secrecy  Is  a  mark  of  fraud. 
'2nd,  Let  tlie  goods  and  chattels  be  ap- 
praised l)y  good  people  to  the  very  value, 
and  take  a  gift  in  particular  in  satisfac- 
tion of  your  debt.  3rd,  Immediately  after 
the  gilt,  take  the  possession  of  them:  for 
continuaiieeof  the  possession  in  the  donor 
is  the  sign  of  trust,  .\iiil  know,  reader, 
that  the  said  words  of  the  proviso,  on  u 
good  consideration,  and  bona  tide,  do  not 
extend  to  every  gift  made  bona  fide;  and, 
therefore,  there  are  two  manners  of  gifts 
on  a  good  ci>nsiiler>!tion,  scil.,  considera- 
tion of  nature,  of  blood,  and  a  valuable 
consideration.  .\s  to  the  lirst  in  the  case 
before  put:"  If  he  who  is  indebted  to  five 
several  persons,  to  each  party  in  t"2u  In 
consideration  of  natural  affection  gives  all 
his  goods  to  his  sou.  or  roiisin.  in  that 
case,  for  as  much  as  others  siiould  lose 
their  debts,  Jic,  which  are  tilings  of  value, 
the  intent  of  the  act  was,  that  the  eou- 
sideration  in   such   rase  should    be   valu- 


•Grcsham  v.  Man,  Gouldsb.  161. 
•Osborn  v.  Churchman,  Cro.  Jac.  1'27;  Llioostoa 
V.  Lloyd,  Palmer,  214. 


83-2 


TWYNE'S  CASE. 


ulile;  for  equity  requires  that  such  gift, 
which  defeats  others,  should  be  made 
on  as  high  and  good  consideration  as 
tlie  things  wliich  arc  thereby  defented 
are;  and  it  is  to  be  presumed  that  tlie 
fatlier,  if  he  had  not  l)een  indebted  to 
otliers,  would  not  liave  dispossessed  him- 
self of  all  his  goods,  and  subjected  himself 
to  liis  cradle;  and  tlierefore  it  shall  he  in- 
tended, that  it  was  made  to  defeat  his 
creditors;  anil  if  consideration  of  nature 
of  blood  shouhl  be  a  good  consideration 
within  tliis  proviso,  the  statute  would 
serve  for  little  or  nothing,  and  no  creditor 
would  be  sure  of  his  debt.  And  as  to  gifts 
made  bona  fide,  it  is  to  be  linown,  that 
every  gift  made  bona  tide,  eitlier  is  on  a 
trust  between  the  parties,  or  without  any 
trust;  every  gift  made  on  a  trust  is  out 
of  this  proviso;  for  that  which  is  betwixt 
the  donor  and  donee,  called"  a  trust  per 
nomen  speciosum,  is  in  truth,  as  lo  all  the 
creditors,  a  fraud,  for  they  are  thereby  de- 
feated and  defrauded  of  their  true  and  due 
debts.  .\nd  every  trust  is  either  expressed 
or  implied;  an  express  trust  is,  when  in 
the  gift,  or  upon  the  gift,  the  trust  by 
word  or  writing  is  expressed  :  a  trust  im- 
plied is,  when  a  man  makes  a  gift  without 
any  consideration,  or  on  a  consideration 
of  nature,  or  blood  only;  and.  therefore, 
if  a  man  before  the  statute  of  "27  H.  S,  had 
bargained  his  land  for  a  valuable  consid- 
eration to  one  and  his  heirs,  by  which  he 
was  seised  to  the  use  of  the  bargainee; 
and  afterwards  the  bargainor,  without  a 
consideration,  enfeoffed  others,  wlio  had 
no  notice  of  tlie  said  liargain;  in  this  case 
the  lawimpliesa  trust  and  confidence, and 
they  shall  be  seised  to  theS  use  of  tlie  bar- 
gainee; so  in  tlie  same  case,  if  the  feoffees, 
in  consideration  of  nature  or  blood,  had 
without  a  valuable  consideration,  en- 
feoffed tlieir  sons,  or  any  of  their  blood, 
who  had  no  notice  of  the  first  bargain, 
yet  tluit  shall  not  toll  the  use  raised  oh  a 
valuable  consideration;  for  a  feoffment 
made  only  on  consideration  of  nature  or 
blood,  shall  not  toll  an  use  raised"  on  a 
valuable  consideration,  but  shall  toll  an 
use  raised  on  consideration  of  nature  for 
botli  considerations  are  in  iEquali  jure, 
and  of  one  and  the  saiue  nature. 

And  when  a  man,  being  greatlyindebted 
to  sundry  persons,  makes  a  gift  to  his 
son,  or  any  of  his  blood,  without  consid- 
eration, but  only  of  nature,  the  law  in- 
tends a  trust  betwixt  them,  scil.,  tliat  the 
donee  would,  in  consideration  of  such  gift 
being  voluntarily  and  freely  made  to  him, 
and  also  in  consideration  of  nature,  relieve 
his  father,  or  cousin,  and  not  see  him 
want  wlio  had  made  such  gift  to  him,  vide 
33H.(i,  33.10  by  Prisot,  if  the  father  en- 
feoffs his  son  and  heir  apparent  within 
age,  bona  fide,  yet  the  lord  shall  have  the 
wardship  of  him  ;  so  note,  valuable  con- 
sideration is  a  good  consideration  within 
this  proviso;  and  a  gift  made  bona  fide  is 
a  gift  made  without  any  trust  either  ex- 
pressed or  implied;  by  which  it  appears, 
that  as  a  gift  made  on  a  good  considera- 


'  Burrel's  Case,  6  Coke,  lib. 

•2  Rolle,  Abr.  799. 

•2  Rolle,  Abr.  779. 

"33  H.  6,  16;  LilUngstou's  Case,  7  Coke,  39b. 


tion,  if  it  be  not  also  bona  fide,  is  not 
within  the  proviso;  so  a  gift  made  bona 
fide,  if  it  be  not  on  a  good  consideration, 
is  not  within  the  proviso;  but  it  ought  to 
he  on  a  good  consideration,  and  also  bona 
fide. 

To  one  wlio  marvelled  what  should  be 
the  reason  that  acts  and  statutes  are 
continually  made  at  every  parliament 
without  intermission,  and  without  end; 
a  wise  man  made  a  good  and  short  an- 
swer, both  which  are  well  composed  in 
verse. 

Quasritur,  ut  crescunt  tot  magna  volumlna  leglsl 
In  promptu  causa  est,  crescit  in  orbe,  dolus. 

And  because  fraud  and  deceit  abound  in 
these  days  more  than  in  former  times,  it 
was  resolved  in  this  case  by  the  whole 
court,  that  all  statutes  made  against  fraud 
should  be  liberally  and  beneficially  ex- 
pounded to  suppress  the  fraud.  Note, 
reader,  according  to  their  opinions,  divers 
resolutions  have  been  made. 

Between  Pauncefoot  and  Blunt,  in  the 
exchequer  chamber,  Mich.  3.5  &  3(i  Eliz.,  the 
case  was:  Pauncefoot  being  indicted  for 
recusancy,  for  not  coming  to  divine  serv- 
ice, and  liaving  an  intent  to  flee  beyond 
sea,  and  to  defeat  the  queen  of  all  that 
might  accrue  to  her  for  his  recusancy  or 
flight,  made  a  gift  of  all  his  leases  and 
goods  of  great  value,  colored  with  feigned 
consideration,  and  afterwards  he  fled  be- 
yond sea,  and  afterwards  was  outlawed 
on  the  same  indictment ;  and  whether  this 
gift  should  be  void  to  defeat  the  queen  of 
her  forfpiture,  either  by  the  common  law, 
or  by  any  statute,  was  the  question.  And 
some  conceived  that  tiie  common  law, 
wliichU  abhors  all  fraud,  would  make 
void  this  gift  as  to  tlie  (jueen,  vide  Mich. 
12  &  13  Eliz. ;  3  Dyer.T-i  295;  4  &  5  P.  &  M. 
IGO. 

And  the  statute  ofJS  50  E.  3,  c.  6,  was 
considered;  but  that  extends  only  in  re- 
lief of  creditors,  and  extends  only  to  such 
debtors  as  flee  to  sanctuaries,  and  other 
privileged  places;  but  someconceived  that 
the  Stat.  ofi*3  H.  7,  c.  4,  extends  to  this 
case.  For  although  the  preamble  speaks 
only  of  creditors,  yet  it  is  provided  by  the 
body  of  the  act  generally,  that  all  gifts  cf 
gfjods  and  chattels  made  or  to  be  made 
on  trust  to  the  use  of  the  donor,  shall  be 
void  and  of  no  effect,  but  that  is  to  be  in- 
tended as  to  all  strangers  who  are  to  have 
prejudice  by  such  gift,  but  between  the 
parties  themselves  it  stands  good.  But 
it  was  resolved  by  all  the  barons, that  the 
Stat.  13  Eliz.  c.  5'5,  extends  to  it:  for  there- 


"  Fermor's  Case,  3  Coke,  7Sa. 

"Fermoi-'s  Case,  3  Co.  78a,  78b,  3  Dyer,  295,  pis. 
8,  9,  10,  &o. ;  Rex  v.  Earl  of  Nottingham,  Lane,  44. 

"  Co.  Litt.  76a. 

"Ridler  v.  Punter,  Cro.  Eliz.  291,  292;  Rex  v. 
Earl  of  Nottingham,  Lane,  45. 

'5  Co.  Litt.  3b,  T6a,  290a,  290b ;  3  Inst.  152 ;  Goooh's 
Case,  5  Coke,  60a,  60b;  Packman's  Case,  6  Coke, 
ISb;  Case  of  Cbancellor,  etc.,  of  University  of  Ox- 
ford, 10  Coke,  56b;  Co,  Ent.  162a;  Pendleton  v. 
Gunston,  I  Leon.  47;  Carter  v.  Clay  cole.  Id.  308, 
309;  Creswell  v.  Cokes,  2  Leon.  8,  9;  Stamford's 
Case,  Id.  223;  Case  No.  83,  3  Leon.  57;  Turvil  v. 
Tipper,  Latch,  222;  Turberville  v.  Tipper,  2  Rolle, 
493;  Paston  v.  Lea,  Palmer,  415;  Brunkhorne's 
Case,  Cro.  Eliz.  233,  234;  Barrel  v.  Wilson,  Id.  645; 


TWVNE'S  CASE. 


833 


by  it  is  enacte  I  and  declared,  that  all 
feoffinentH.  RiftH.  grantH,  &c.,  "to  delay, 
hinder  or  drfrmid  creditors  and  (jtlierH  o[ 
their  jiiKt  iuid  lawful  actions.  suitH,  dehtH, 
nrcr)untH,  dmnaKCH,  penalties,  forfeitureH, 
heriotH,  mortuaries  and  reliefs,"  shall  bo 
void,  &c.  So  lliat  this  act  iloth  not  ex- 
tend only  to  cre<litors,  but  to  ail  others 
who  had  cause  of  action,  or  suit,  or  any 
penalty,  or  forfeiture,  &c. 

And  it  was  resolved,  that  this  word 
"forfeiture"  should  not  be  intended  only 
of  a  forfeiture  of  iin  ohliyation,  recogni- 
sance, or  such  liUe  (as  it  was  objected  by 
some,  that  it  should,  in  respect  that  it 
comes  after  ilartiano  and  penalty),  but 
also  to  everything  winch  shall  by  law  be 
forfeited  to  the  kinj^  or  subject.  And 
therefore,  if  a  miin,  to  prevent  a  forfeiture 
for  fi'lony,  or  by  outlawry,  makes  a  gift 
of  all  his  Roods,  and  afterwards  is  at- 
tainted orou tla wed,  these  Roods  are'"  for- 
feited, notvvithstanding  this  Rift;  tlie 
>ame  law  of  recusants,  and  so  the  statute 
is  e.\pounde4l  beneficially  to  suppress 
fraud.  Note  well  this  word''^  "declare" 
in  the  act  ot  l.'i  liliz.,  by  which  the  parlia- 
ment expounded  that  this  was  the's  com- 
mon law  before.  .\nd  according  to  tliis 
resolution  it  was  decreeil,  Hil.  30  Eliz.,  iu 
the  exchci|ui'r  chamber.  Mich.  42  &  J."! 
Eliz.  in  the  common  pleas,  on  evidence 
to  a  jury,  between  .Standeu'"  and  Bul- 
lock, these  points  were  lesolved  by  the 
whole  court  on  the  stat.  of  L'7  Eliz.  e. 
4.  Walmsley,  J.,  said  that  Sir  Christo- 
pher Wray,  late  C.  J.,  of  England,  rejiort- 
ed  to  him,  that  he  and  all  his  coii:|)anions 
of  the  kluR's  bench  were  resolved,  and  so 
directed  a  jury  on  evidence  before  them  ; 
that  where  a  man  had  conveyed  his  land 
to  the  use  ot  himself  for  life,  and  after- 
wards to  the  use  of  divers  other  of  liis 
blood,  with  a  future  power  of  revocation, 
as  after  such  feast,  or  after  the  death  of 
such  one;  and  afterwards,  and  before  the 
power  of  revocalicjn  bep;an,  he,  for  valua- 
l)le  consideration,  bargained  and  sold  the 
land  to  atiother  and  his  heirs;  this  bar- 
Rain  and  sale  is  within  the-'^  remedy  of  the 
said  Stat.  For  nItliouRh  the  stat.  saitli, 
"the  said  first  conveyance  not  by  him  re- 
vokeil,  accordiuR  to  the  [)ower  by  him  re- 
served,'" which  seems  by  the  literal  sense 
to  be  intended  (4  a  present  po«cr  of  revo- 
cation, for  no  revocation  can  be  made  by 
force  of  a  future  power   until  it   comes  in 


esse;  yet  it  was  held  that  tlie  intent  of  the 
net  was,  tlint  such  voluntary  conveyance 
which  was  oriRinally  suliject  t<j  a  power 
of  revocation,  be  it  in  prjesenti  or  in  (u- 
tnro,  should  not  stanil  aRalnst  a  pur- 
chaser bona  tide  for  a  valuable  consider- 
ation :  and  if  otherconstruction  sliould  be 
made,  the  said  act  would  serve  for  little 
or  no  purpose,  anil  it  would  be  no  dilli- 
cult  mutter  to  evade  it:  so  if  A.  liad  re- 
served to  himself  a  pctwcr  of  revocation 
with  the  assent  of  li.  and  afterwards  A. 
bnrRained  and  sold  the  land  to  another, 
this  barRain  and  sale  is  Rood,  and  within 
the  remedy  of  the  said  act;  for  otherwise 
the  Rood  |>rovision  of  the  act,  by  a  small 
adtlition,  and  evil  invention,  would  be  de- 
feated. 

And  on  the  sainereason  it  wasadjudged, 
:iS  Eliz.,  in  the  common  pleas,  between 
Lee  and  his  wife,  e.v<'cuti-ix  of  one  Smyth. 
plaintiff,  and  .\Iary-'  Colshill,  executrix  of 
Thomas  Colshlll,  defendant  in  del)t  on  hd 
obliRation  of  lOOO  marks.  Hot.  17117.  The 
case  was,  Colshill,  the  testator,  had  the 
ollice  of  the  queen's  customer,  l>y  letters 
patent,  to  him.an<l  his  deputies;  and  by 
indenture  between  him  and  Smyth,  the 
testator  of  the  plaintiff,  and  for  £i;()0  paid, 
and  £100  per  ami.  to  bo  paid  duriuR  the 
life  of  ('(dshill,  made  a  deputatioti  of  the 
said  ollice  to  Smyth;  and  Colshill  cove- 
nanted with  .Sruyth,that  if  Colshill  should 
die  before  him.  that  tlien  his  executors 
should  repay  him  £:!(!().  And  divers  ci>ve- 
nants  were  in  thesaiil  indenture  cimcern- 
iiiR  the  said  ofhce,  and  the  enjoy iiiR  of  it; 
and  Colshill  was  bound  to  tlie  said  .Smyth 
in  the  said  obliRation  to  perform  the  cov- 
enants; and  tlie  breach  was  aileRcil  in  the 
non-jpnyment  of  the  snid  £:!(I0,  forasuuch 
as  Smyth  survived  Ccdshill;  and  althouRh 
the  said  covenant  to  repay  the  iliOO,  was 
lawful,  yet,  forasmuch  as  the  rest  of  the 
covenants  were  aRainst  the  statute  of^z 
.'i  E.  0,  cap.  10,  and  if  the  addition  of  a  law- 
ful covenant  shouhl  make  the  obliRation 
of  force  as  to  that,-'' the  statute  would 
serve  for  little  or  no  purpose;  for  this 
cause  it  was  adjudRcd  that  the  obliRa- 
tion was  utterly  void. 

M.  It  was  resolved  that  if  a  man  hath 
power  of  revocation,  and  afterwards  to 
the  intent  to  defraud  a    purchaser,  he  lev- 


Bethel  V.  Stanhope,  Id.  810;  Hawes  v.  Leader. 
Cro.  Jac.  270:  Stone  v.  Grubham,  2  Bulst.  2JG; 
Humborton  v.  Howgil,  Ilob.  "i;  Id.  106;  Uawes  v. 
Loader,  Yclv.  190,  ]!)7, 1  Hrownl.  &  G.  Ill :  8  Dvcr, 
2!!.-).  pi.  17;  Creswell  v.  Cokos.  Id.  ."!.il,  pi.  23;  Rastal, 
Fraudulent  Deeds.  1  Rast.  Knt.  20rb;  Rex  v.  Earl 
of  Nottingham,  Lane,  47;  Kitchin  v.  Calvert,  Id. 
10.3:  C'hauiboi-lain  v.  Twyne,  Moore,  63S;  Doct. 
Plac.  2(HI. 

'•Co.  Litt.  2fl0b. 

"Co.  Litt.  70a,  290b. 

'•Jenkins  v.  Kemishe,  Hardr.  397;  Standen  v. 
Bullock,  Toth.  71. 

'"Digges'  Case,  Moore,  00.5;  Bullock  v.  Thorns, 
Id.015;  fiarthv.  Ersfeild,  Bridg.  23:  Gooch'sCase, 
.5  CoUe,  Odb;  Llinaston  v.  Lloyd,  Palmer,  217;  St. 
Saviours  in  Southwark,  Lane,  22;  Builerv.  Water- 
house,  T.  Jones,  95. 

Trodgers  v.  Langham,  1  Sid,  133. 
LAW  SALES — 53 


"2  And.  5.5,  Id.  107;  Norton  v.  Symm,  Godb.  21.3; 
Leo  V.  Coleshill,  Cro.  Eliz.  .Vi;!;  Norl.ia  v.  Syms, 
Moore,  b57;  Bishop  of  Chester  v.  Frceland,  Ley, 
75,  79. 

"Hill  V.  Farmer.  Style,  29;  Leo  v.  Coleshill,  Cro. 
Eliz-.Vi9:  Trevor's  Case,  Cro.  Jac.  269;  Humberton 
V.  Howgil,  Hob.  72;  Co.  Litt.  2,348;  Trevor's  Case, 
12  Cok<>.  7-<;  8  Inst-  14.S,  1.54:  Daws  v.  Pavnter,  3 
Keb.  20;  Ellis  v.  Nelson.  Id.  CwU.  000;  W'elch  v. 
Baden,  Id.  717,  71s ;  Williamson  v.  Barnslov.  I 
Brownl.  &  G.  70,  71 ;  Smyth  v.  Colshill,  2  And".  .55. 
Id.  107;  Rex  v.  Zakar,  3  Bulst.  91;  :!  Leon.  33; 
Warren  V.  Smith,  1  RoUe,  157;  Southcottv.  Adams, 
Id.  250;  Gouldsb.  ISO. 

M Smyth  v.  Colshill,  2  And.  50,  57.  Id.  lOS;  Male- 
veror  v.  Redshaw,  1  Mod.  3.5,  liO;  Norlcm  v.  Simmos, 
Hob.  14;  Pigofs  Case,  11  Coke,  271);  2  Rollo,  Abr. 
28;  Co.  Litt.  221a;  Bisliop  of  Carlisle  v.  WoUs,  T. 
Jones,  9(1,  91 :  Leo  v.  Coleshill,  Cro.  Elir.  .529,  ri30; 
Eliot  V.  Skvi>p.  Cro.  Car.  '.Via;  Norton  v.  Svmm, 
(Jodb.  212,  2i;!.  1  Brownl.  &  G.  04;  Dive  v.  MiininR- 
haui,  Plowd.  BSb;  Norton  v,  Syms,  Moore.  &50, 857; 
Bishop  of  Chester  v.  Freelaud,  Loy,  75,  79. 


834 


TWYNE'S  CASE. 


lea  n^*  fine,  or  makes  a  feoffment,  or  other 
conveyance  to  a  stranijer,  by  which  he  ex- 
tinKuishes  his  power,  and  afterwards  bar- 
gains and  sells  the  land  to  another  for  a 
valuableconsideration,  the  barsaineesliall 
enjoy  the  land,  for  as  to  him  the  fine, 
fecffinent,  or  other  conveyances  l)y  which 
the  condition  was  extinct,  was  void  by  the 
said  act;  and  so  tin-  tirwt  clause,  by  which 
all  fraudulent  and  covinous  conveyances 
are  inaile  void  as  to  purchasers,  extend  to 
the  last  clause  of  the  act;  soil.,  when  he 
whoniakesthebar^ainnnd  salehad  power 
(jf  revocation.  And  it  was  said  that  the 
Stat,  of  27  Eliz.  hath  made  voluntary  es- 
tates made  with  power  of  revocation,  as 
to  purchasers,  in  equal  degree  with  con- 
veyances made  by  fraud  and  covin  to  de- 
fraud pui'cliascrs. 

Between-"  Upton  and  Basset  in  tre.s- 
pass,  Trin.  :17  Eliz.  in  the  common  pleas, 
it  was  adjudsed  that  if  a  man  malies  a 
lease  for  years  by  fraud  and  covin,  and 
afterwards  makes anotlier  lease  bona  fide, 
but  without  fine  or  rent,  reserved,  that 
the  second  lessee  should  not  avoid  the 
first  lease. 

For  first  it  was  agreed,  that  by  the  com- 
mon law  an  estate  made  by  fraud  should 
he  avoided  only  by  him  who  had  a  former 
right,  title,  interest,  debt  or  demand,  as 
3:5  H.  6,  a  sale  in  open-s  market  by  covin 
shall  not  bararight  wliich  ismr)reancient: 
nor  a  covinous  gift  shall  not  defeat  execu- 
tion in  respect  of  a  former  debt,  as  it  is 
agreed  in  l'2  Ass.  72;  bnt  he  who  hath 
right,  title,  interest,  debt,  or  demand  more 
puisne  shall  not  avoid  a  gift  or  estate 
precedent   by  fraud    by  the  common  law. 

2d.  It  was  resolved  that  no  purchaser 
should  avoid  a  precedent  conveyance 
made  by  fraud  and  covin,  !)ut  he  who  is 
a-"  purchaser  for  money  or  other  valua- 
ble consideration;  for  altlu)ugh  in  the 
preamble  it  is  said  "for  money  or  other 
good  consideration,"  and  likewise  in  the 
body  of  the  act  "for  money,  or  other  good 
consiileration,"  yet  these  words  "good 
consideration"  are  to  l)e  intended  only  of 
valuable  consideration,  and  that  appears 
l)y  the  clause  which  concei-ns  those  who 
had  power  of  revocation,  for  there  it  is 
said,  for  money  or  other  good  consider- 
ation paid  or  given,  and  this  word 
"  paid"  is  to  lie  referred  to  "money,"  and 
"given"  is  to  be  referred  to  "good  consid- 
eration," so  the  sense  is  f<jr  money  paid, 
or  other  good  consiileration  given,  which 
woi-ds exclude  all  considerations  of  nature 
or  blood,  or  the  like,  and  are  to  be  Intend- 
ed only  of  valuable  considerations  which 
may    be    given;     and     therefore   he    who 


*< Albany's  Case,  1  Coke,  113b;  Digues'  Case,  Id 
174a;  Co.  Litt.23ra;  Sheffield  v.  Ratcliffe,  Hob.  337, 
33S;  Diprges'  Case,  Moore.  605;  In  re  Le  Rov  3 
Rolle,  3:jr;  Sir  Sheffeild's  Case,  td.  496;  Oxford  v. 
Goldington,  Winch,  6.5. 

"Co.  Ent.  6-6b.  note  19;  Rex  v.  Earl  of  Notting- 
ham, Lane,  4.5;  Upton  v.  Basset,  Cro.  Eliz.  44.5. 

"Fermor's  Case,  3  Coke,  7S;  Wimbish  v.  Tail- 
bois.  Plow.  46b,  .55a;  Fitz,  Replic.  15;  Br.  Trespass 
26;  Br.  Collusion  4;  Br.  Property  6;  2  Inst.  713- 
14  H.  8,  Sb;  :«  H.  fi,  .5a,  b. 

*'  Upton  V.  Basset,  Cro.  Eliz.  445. 


makes  a  purchase  of  land  for  a  valuable 
consideration  is  only  a  purchaser  within 
the  statute,  aud  this  latter  clause  doth 
well  expounil  these  words  "other  good 
consideration,"  mentioned  before  in  the 
preamble  anil  body  of  the  act. 

And  so  it  was  resolved,  Pasch.  32  Eliz., 
in  a  case  referred  out  of  the  chancery  to 
the  consideration  of  Windham  and  Peri- 
am,  Justices :28  between  .John  Needham, 
plaintiff,  and  Beaumont,  serjeant-atla w, 
defendant,  where  the  case  was,  Henry 
Babington  seised  in  fee  of  the  manor  of 
Lit-Chnrch,  in  the  county  of  Derl)y,  by 
indenture,  10  Feb.  S  Eliz.,  covenanted  with 
the  Lord  Darcy,  for  the  advancement  of 
such  heirs  male,  as  well  those  he  had  be- 
got, as  those  he  should  afterwards  beget 
on  the  boily  of  Mary  then  his  wife  (sister 
to  the  said  Eord  Da  re  .v ),  before  the  feast 
of  St.  Jolin  Baptist  then  next  following, 
to  levy  a  fine  of  the  said  manor  to  the  use 
of  the  said  Henry  for  his  life,  and  after- 
wards to  the  use  of  the  eldest  issue  male 
of  the  bodies  of  the  said  Henry  and  Mary, 
begotten  in  tail,  &c.,  and  so  to  three  is- 
sues of  their  bodies,  &c.,  with  the  remain- 
der to  his  right  heirs.  And  afterwards, 
8  Mali,  Ann,  8  Eliz  ,  Henry  Babington,  by 
fraud  and  covin,  to  defeat  the  said  cove- 
nant, made  a  leaseof  the  said  manor  tor  a 
great  number  of  years  to  Robert  Heys; 
and  afterwards  levied  the  fine  accordingly: 
and  ()n  conference  had  with  the  other  jus- 
tices, it  was  resolved,  that  although  tlie 
issue  was  a  purchaser,  yet  be  was  not  a 
purchaser  in  vulgar  and  coniniou  intend- 
ment: also  consideration  of  blood,  nat- 
ural affection,  is  a  good  consideration,  but 
not  such  a  good  consideration  which  is 
intended  by  the  stat.  of  27  Eliz..  for-9  a 
valuableconsideration  is  onl.v  a  good  con- 
sideration within  that  act.  In  this  case, 
Anderson, C.  .I.,of  the  common  pleas, said, 
that  a  man  who  was  of  small  understand- 
ing, and  not  able  to^o  govern  the  lands 
which  descended  to  him,  and  lieing  given 
to  riot  and  disorder,  by  mediation  of  his 
friends,  openly  convejed  his  lands  to 
them,  on  trust  ami  eonfideuce  that  he 
should  take  the  profits  for  his  mainte- 
nance, and  that  he  should  not  have 
power  to  waste  and  consume  the  same; 
and  afterwards  he  being  seduced  l)y  de- 
ceitful aud  covinous  persons,  for  a  small 
sum  of  money  bargained  and  sold  his  land, 
beins  of  a  great  value:  this  bargain,  al- 
though it  was  for  money,  was  holden  to 
be^i  out  of  this  statute,  for  this  act  is 
made  against  all  fraud  and  deceit,  and 
doth  not  help  any  purchaser,  who  dotli 
not  come  to  the  land  for  a  good  consid- 
eration lawfully  and  without  fraud  or 
deceit;  and  such  conveyance  made  on 
trust  is  void  as  to  him  who  purchases  the 
land  for  a  valuable  consideration  bona 
fide,  without  deceit  or  cunning. 

And  by  the  judgment  of  the  whole  court 
Twyne  was  convicted  of  fraud,  and  he 
and  all  the  others  of  a  riot. 


2' Needham  and  Beaumont's  Case,  1  And.  233. 
2'Beverlv  v.  Gatacre,  2  Rolle.  3U5,  306. 
™  Upton  V.  Basset,  Cro.  EI.  44.5. 
*•  Upton  v.  Basset,  Cro.  El.  44.5. 


UNEXCELLED  FIRE  WORKS  CO.  v.  POLITES. 


837 


UNEXCELLED  FIRE-WORKS  CO.  v.  POLITES. 

(18  Atl.  Rep.  1058,  ISO  Pa.  St.  536.) 

Supreme  Court  of  PcoDsylvania.    Jan.  6,  1S90. 

Error  to  court  of  common  pleas,  Lawrence 
county. 

Before  Paxson,  C.  J.,  Steruett,  Gukes, 
Clauk,  Williams,  McColluji,  and  Mitch- 
ell, JJ. 

\V.  H.  Falls,  for  plaintiff  in  error.  D. 
Jameson,  (with  liim  G.  E.  Treadwell,)  for 
defendant  in  error. 

Clauk,  -T.  This  is  an  action  oi  assumpsit, 
brouglit  July  20, 1868,  to  recover  the  price  of 
a  certain  lot  of  lire-works  and  celeljration 
(,'ooils,  ordered  by  the  defendant,  George  Po- 
ntes, from  the  Unexcelled  Fire- Works  Coin- 
I)any,  of  New  York,  in  February,  1888.  The 
first  order,  which  was  for  liis  store  in  Xew 
Castle,  was  given  through  tlie  plaintiff's 
a^'ent,  Alexander  Morrison,  and  amounted  to 
.S208.53;  the  second,  sent  directly  to  the  plain- 
tiff, was  for  the  defendant's  store  in  Wash- 
ington, Pa.,  and  amounted  to  S123.83.  These 
orders  were  in  writing,  and  were  signe<l  by 
the  <lefendant.  They  specified,  not  only  the 
j)articular  kind  and  quality  of  the  articles  or- 
dered, but  contained  also  a  schedule  of  the 
prices  to  bo  paid  therefor.  The  goods  were  to 
he  shipped  in  May,  and  were  to  be  paid  for  on 
the  lUth  day  of  July  thereafter.  Upon  re- 
ceipt of  these  orders  the  plaintiff  transmitted 
by  letter  a  formal  acceptance  of  them.  A 
contract  was  thus  created,  the  obligation  of 
which  altai  lied  to  both  parties,  and  which 
neither  of  them,  without  the  agreement  or 
assent  of  the  other,  could  rescind.  On  the 
5th  day  of  April,  1888,  the  defendant,  by  let- 
i  ter,  informed  the  plaintiff  that   he  did  not 

want  the  goods,  and  notified  the  plaintiff  not 
to  ship  them,  as  he  could  do  better  with  an- 
other company.  The  plaintilTs  replied  that 
they  had  accepted  the  orders,  and  had  placed 
theui  in  good  faith,  and  that  tlie  goods  would 
be  shipped  in  due  time,  according  to  the 
agreement.  The  goods  were  shipped  within 
tlie  time  agreed  upon, — the  lirst  lot  to  New 
Castle,  and  the  second  lot  to  Washington, 
according  to  contract;  but  on  the  arrival  the 
defendant  declined  to  receive  them.  The 
carrier  notified  the  shipper  that,  owing  to  the 
dangerous  and  explosive  ijuality  of  the  goods, 
they  would  not  retain  them  in  their  posses- 
sion. The  ))laintiff  thereupon  received  them 
back  from  the  carriers,  and  placed  them  on 
storage,  subject  to  the  defendant's  order. 

The  plaintiff  alleges  that  it  is  a  manufact- 
urer and  importer  of  such  fire-works  as  are 
used  in  the  4th  of  July  celebrations  through- 
out the  country;  that  it  is  not  profitable  to 


'  carry  these  goods  over  from  one  season  to  an- 
other, and  that  therefore  the  quantity  manu- 
factured and  imported  depends  upon  the  ex- 
tent of  the  orders  received;  that  the  defend- 
ant's orders  entered  into  its  estimates  of 
goods  to  be  made  up  and  imported  for  tlie 
season  of  1888,  and  that  the  goods  ordered  by 
the  defendant  were  actually  made  up  before 
the  order  was  countermanded.  The  defend- 
ant testifies,  however,  that  Mr.  Morrison,  the 
plaintiff's  agent,  informed  him,  at  the  time 
he  gave  the  lirst  order,  that  the  plaintiff  had 
some,  at  least,  of  the  articles  in  stock,  and 
that  he  did  not  order  any,  either  to  be  manu- 
factured or  imported  on  his  account;  that  the 
transaction  was  sim|dy  a  bargain  and  sale  of 
goods,  and  not  an  order  for  goods  to  be  manu- 
factured or  imported;  and  the  evidence  does 
not  seem  to  conflict  with  this  view  of  the 
case.  It  is  plain  that  the  notice  given  to  the 
plaintiff  by  the  defendant  not  to  ship  the 
goods  was  a  repudiation  of  the  contract.  It 
was  not  a  rescission,  for  it  w.is  not  in  the 
power  of  any  one  of  the  parties  to  rescind; 
but  it  was  a  refusal  to  receive  the  goods,  not 
only  in  advance  of  the  delivery,  but  before 
they  were  separated  from  the  bulk,  and  set 
apart  to  the  defendant.  The  direction  not  to 
ship  was  a  revocation  of  the  carrier's  agency 

'  to  receive,  and  the  |)!aintilT  thereby  had  no- 
tice of  the  revocation.     The  delivery  of  the 

!  goods  to  the  carrier,  therefore,  w;is  unau- 
thorized, and  the  carrier's  receipt  would  not 
charge  the  defendant.  The  plaintiff  itself 
made  the  carrier  its  agent  for  delivery,  but 
the  gools  were  in  fact  not  delivered.  A  de- 
livery was  tendered  by  the  carrier,  when  the 
goods  arrived  at  their  destination,  but  they 
wore  not  received.  The  action,  therefore, 
could  not  lie  for  the  price,  but  for  special 
damages  for  a  refusaf  to  receive  the  goods 
when  the  delivery  wa.s  tendered.  We  think 
the  statement  was  suilicient  to  justify  a  re- 
covery of  such  damages,  as  the  words  of 
the  statement  were  clearly  to  this  effect;  but 
there  was  no  evidence  given  of  the  market 
value  of  the  goods  as  compared  with  the  price. 
It  does  not  appear  that  the  plaintiff  had  suf- 
fered any  damage.  For  anything  that  was 
shown,  the  goods  were  worth  the  price  agreed 
upon  ill  the  open  market.    While  the  manifest 

I  tendency  of  the  cases  in  the  .Vmericau  courts 

I  now  is  to  the  doctrine  that  when  the  vendor 
stands  in  the  position  of  a  complete  perform- 
ance on  his  part  ho  is  entitled  to  recover  the 
contract  price  as  his  measure  of  damages,  in 
the  case  of  an  executory  contract  for  the  sale 
of  goods  not  specific  the  rule  undoulitedly  is 
that  the  measure  of  damages  for  a  refusal  to 
receive  the  goods  is  the  difference  between 

'  the  price  agreed  upon  and  the  market  value 

[  on   the  day  appointed   for  delivery.    Judg- 

I  ment  alllrmed. 


WALKEU  V.  DAVIS. 


8:39 


WALKER  V.  DAVIS.  ; 

(18  Atl.  Rep.  I'JO,  0.5  N.  H.  170  ) 

Supreme  Court  of  New  Hampshire.     Merrimack. 
July  3t},  issa. 

On  report  of  referee.  j 

AsstcmpHt  for  not  acceptintj  and  paying 

for  a  quantity  of  wood  according  to  a  con-  ; 

trait.     Facts  found  by  a  referee.  j 

Daniel  liarri'ird  and  Frank  JV.  Parsons,  ' 

for  plaintiff.     Sanborn  cfc  Hardy,  for  defend-  j 

ant. 

Clark,  J.     The  contract  for  the  sale  of  I 
the  wood   was  an  entire  contract.     Gault  v.  j 
Brown,  48  X.  II.  18:3.     Tlie  first  wood  deliv-  j 
ered   was    not   pro[ierly  sorted   tlirough   tlie  1 
fault  of  tlie  plaintiff's  servants,  and  between  ' 
20  and  30  cords  of  a  dilTerent  quality  from 
that  contracted  for  were  loaded  on  tlie  cars 
at  Grafton,  and  forwarded  to  the  defendant 
at   Franklin.     The   phiintilT,    learning   that 
the  wood  forwarded  was  not  according  to  the 
contract,  wrote  to  the  defendant,  stating  how 
it  happened  to  be  sent,  inclosing  a  bill  for  it 
in  which  a  discount  was  made  because  it  was 
not  according  to  contract,  and  stating  that 
the  defendant  could   pay  this  bill,  or  sort  the 
wood  to  conform  to  the  contract,  and  charge 
the  expense  to  him,  and  jiromislng  to  con- 
form to  the  contract  in  the  future.     The  de- 
fendant,  upon   ascertaining   that   the    wood 
was  not  according  to  the  contract,  notified 
the  plaintiff  that  he  did  not  consider  himself 


nnder  any  obligation  to  take  any  more  of  tlie 
Wood,  and  that  he  sho'.iM  not  do  so  for  the 
rea.soii  th.it  tlie  plaintiff  had  broken  the  con- 
tract. The  case  finds  that  the  defenrlant  did 
not  waive  his  right  to  rescind  if  upon  the 
facts  he  could  rescind.  A  jiarty  to  a  con- 
tract is  not  bound  to  accept  anything  less' 
than  a  full  performance  according  to  it3 
terms  and  conditions.  The  wood  forwarded 
uj)  to  the  time  of  the  attempted  rescission 
was  not  in  compliance  with  the  contract,  and 
the  defendant  refuse  I  to  accept  it  as  such, 
and  notified  the  plaintiff  that  he  rescinded 
the  contract.  This  he  had  a  right  to  do. 
The  wood  delivered  not  being  such  as  the 
contract  called  for,  the  defend mt  was  not 
bound  to  receive  it.  The  plaintiff's  letter, 
insisting  upon  an  acceptance  of  the  wood  and 
a  variation  from  the  original  contract,  pre- 
sented the  alternative  to  the  defendant,  either 
to  accept  the  wood  at  a  reduced  jirice,  or  sort 
it  to  conform  to  the  contract,  charging  the 
expense  to  the  plaintiff.  The  defeiid:int  was 
under  no  oblig.ilion  to  do  either.  If  all  the 
wood  contracted  for  had  been  delivered  at 
once  containing  the  wood  delivered  up  to  tlie 
time  the  notice  of  the  rescission  w;is  given, 
the  defendant  would  not  have  been  compelled 
to  accept  it.  because  it  was  not  of  the  quality 
stipulated  for.  Judgment  for  the  defend- 
ant. 

Allen,  J.,  did  not  sit.     The  others  con- 
curred. 


WALTER  A.  WOOD  MOWING  &  REAPING  MACH.  CO.  v.  GAERTXER.     841 


WALTER  A.  WOOD  MOAVLNG  &  REAPING 
iL^CHTXE  CO.  T.  GAERTXER. 

(SO  N.  W.  Rep.  106,  G3  Mich.  520.) 

Supreme  Court  of  SIichi«an.    Nov.  4,  188C. 

Error  to  Monroe;  JuHlin,  Judce. 

AHHiiinpsit.  Defendant  briii;^H  error. 
Reversed. 

This  action  was  brouRht  to  recover  the 
contract  price  of  a  twine  Helf-biiitlinK  hnr- 
vewter,  under  an  order  of  wliicli  the  follow- 
Ins  is  a  copy  :  "  Waller  A.  Woori  Mowinjj; 
&  ReapinK  .Machine  Co.,  SO  Taylor  Street, 
Cliicago,  111.:  I  lierel)y  order  one  Walter 
A.  Wood  twine  eclf-ldndinR  liarvester,  T< 
feet  (i  inches  cut,  to  be  delivered  at  Puters- 
burgh,  Mich.,  care  of  O.  M.  Kiissfll,  on  or 
liefuro  July  15,  1SS3,  for  which  I  u^ree  to 
pay  you  the  sum  of  $78  in  .Junior  reaper, 
and  in  manner  as  follows:  The  balance, 
5147,  caKh,  with  freight  from  Peter.sbnrKh, 
on  or  before  September  2."},  's;j,  with  inler- 
CHt  at  7  per  cent,  per  annum  from  the  date 
of  delivery  of  machine  or  commencement 
of  harvest.  If  paid  on  or  before  maturity, 
no  interest  to  be  paid.  Warranty:  This 
machine  is  warranted  to  be  well  made,  of 
good  materials,  and  with  proper  raanage- 
raeiit,  capable  of  cutting  and  binding  in  a 
workmaidike  manner,  doing  the  binding 
at  least  as  well  as  is  usually  doneby  hand. 
The  purchaser  shall  lie  allowed  one  day's 
use  to  give  the  machine  a  fair  trial,  and  if 
it  should  not  work  well  immediate  written 
notice  ronst  be  given  to  the  agent  from 
whom  it  was  purchased,  and  reasonable 
time  allowed  to  get  to  it  and  remedy  the 
defects,  if  any,  (the  purcliaser  rendering 
necessary  and  friendly  assistance;)  when, 
if  it  cannot  be  made  to  do  good  work,  it 
shall  be  returned  to  the  place  where  received 
free  of  charge,  and  the  payments  of  money 
or  notes  will  be  refunded.  Failure  to  give 
notice  as  above  shall  bedeemed  conclusive 
evidence  that  the  machine  fills  the  warran- 
ty, whether  It  is  kept  in  use  or  not. 
[Signed]     Fred.  r,acrtner.  Purchaser." 

I.  R.  (irosvenor  and  A.  B.  Bragden,  for 
appellant.    O.  A.  Critchett,  for  appellee. 

MORSE,  .T.  This  case  lias  been  once 
heretofore  in  this  court.  The  contract 
sued  upon  is  set  forth  in  the  opinion  of 
.Mr.  Justice  SHERWOOD  in  .-).->  Mich.  4r)4, 
21  N.  W.  Rep.  SN.j.  We  then  held  that  it 
was  competent  for  the  defendant  to  show 
that  it  was  a  part  of  the  consideration 
for  wliich  the  order  was  given  that  the 
plaintiff  should,  at  the  time  of  the  deliv- 
ery of  the  property  ordered, furnish  a  man 
to  set  up  the  macliine,  and  make  it  work 
In  the  manner  prescribed  in  the  order. 
The  defendant,  upon  the  last  trial  in  the 
circuit,  introduced  testimony  fairly  tend- 
ing to  show  that  the  consideration,  in 
part,  consisted  of  the  agreement  upon  the 
part  of  plaintiff's  agent  thai  the  machine 
should  be  delivered  ready  for  use  on  or  be- 
fore the  tifleenth  day  of  July  The  con- 
tract for  the  purchase  of  the  machine  was 
on  the  tenth  of  that  month,  and  made 
with  the  evident  object  and  purposp  for 
use  in  the  harvest  of  that  year,  which 
was  e.xpected  to  come  closely  upon  the 
heels  of  the  purchase.  The  evidence  was 
undisputed  that  on  tliefourteeuth  of  July, 


on  Saturday,  the  machine,  or  boxes  and 
packages  supposed  to  contain  the  differ- 
ent parts  of  the  machine,  arrived  at  Pe- 
tersburgh.  Mr.  Russell,  the  local  agent  of 
the  plaintiff  conipaoy,  helped  defendant 
to  load  the  boxes  and  packages,  and  de- 
fendant drew  them  to  his  home,  a  few 
miles  from  the  station.  In  the  forenoon  of 
that  day.  At  this  time  Russell  told  de- 
fendant that  he  expected  an  expert  there 
to  set  it  up.  Russell  swears  he  said  the 
expert  would  be  there  Monday  or  Tues- 
day, while  defendant  tostilies  that  Itussell 
said  the  expert  would  arrive  on  the  nft- 
ernoon  train  that  day,— Saturday.  De- 
fendant went  to  town  in  the  afternoon 
of  Saturday,  for  the  exi)ert,  who  hail  not 
arrived.  The  expert  came  to  Petersburgb, 
Monday  afternoon,  and  on  Tuesday  set 
up  a  niachine  for  another  man,  who  had 
ordered  a  machine  lijter  than  defendant. 
He  went  to  defendant's  on  Wednesday 
morning,  Jidy  18th.  to  set  up  the  ma- 
chine. Defemlant,  ha  ving  cut  most  of  his 
wheat  before  this,  commencing  on  .Mon- 
day,— as  he  claimed,  because  it  was  so 
ripe  he  could  wait  no  longer, — refused  to 
I  take  the  machine. 

I      It  is  admitted  that  Russell  could  not  set 
I  up  the  machine,  and   so   informed   defcnd- 
|ant.     Defendant  swears   that  he  told  Rns- 
i  sell,   Saturday    morning:     "I    want    that 
I  niachine  set   up;    that  is,  if  there   is   any- 
thing like  it  in  the  boxes.    I  want  that  put 
;.up,  so  I  can  run  it.  un<i  cut  my  wheat,  be- 
cause  it   is   ripe    now."     Russell    said    he 
I  "iliiln't  know  how  to   set   it   up.     He  ex- 
pecteil    an   ex|)ert   for   that  work,  and   he 
thought    the    expert    would     be   in    that 
afternoon,    on    the   .')   o'clock  train. "     De- 
fendant went  to  town   after   the  0   P.  M. 
train,  and    was   then  told  by  Russell  that 
the  expert  would  be  there  Monday.     Mon- 
day morning   defendant   went    to    Peters- 
burgh  again.     The  expert  not   having  ar- 
rived, he   told  Russell  he  did  not  want  the 
machine,    because    his    wheat    was   dead 
rii)e,  and   he    must   hire  men,   and   cut   It 
right  away.     This  he  proceeded  to  do. 

The  court,  after  ciiarging  the  jury  at 
considiTal)le  length,  finally  said:  "I  may, 
in  short,  say  to  you  :  Fiml  a  verdict  for 
the  plaintiff,  with  the  amount  of  this  or- 
der, with  interest  to  the  present  time, 
$"J(!.5.  I  receive  the  verdict."  Instantly 
thereupon  the  court  continued:  "No;  I 
will  not.  1  say  to  the  jury,  if  you  find 
the  niachine  was  delivered  there  on  or  be- 
fore the  ].')th,  then  the  company  were  to 
have  a  reasonable  length  of  time  after  Mr. 
I  (iuertner  had  drawn  the  machine  home 
in  which  to  set  it  ui),  and  give  him  an 
opportunity  to  test  it.  aii<l  that  by  Wed- 
nesday was  a  reasonable  lime,  within  the 
law;  an<l  that  if  you  Und  from  the  evi- 
dence that  Mr.  Uaertner  said,  '  I  will  not 
take  it,' as  early  as  Monilay,  which  was 
the  next  day  after  the  time  tlxed  for  Its 
delivery,  and  repeated  it  on  Tuesday,  and 
then  on  Wednesdjiy,  '1  will  not  hlichonto 
it.  and  I  ain  not  going  to  take  it,'  then 
the  com|)ony  need  not  set  it  up,  nor  test 
it,  nor  give  him  any  op|)ortunity  to  ex- 
amine it  at  all,  and  he  became  liable  for 
the  machine  at  the  contract  price.  Swear 
an  olficer.  " 
This  was  practically  directing  a  verdict 


S42    WALTER  A.  WOOD  MOWING  &  REAPING  MACH.  CO.  o.  GAERTNER. 


for  plaintiff,  and  was  errtir.  Tlie  machine 
could  nut  l)e  considered  as  delivered  until 
it  was  set  up  as  a  machine.  The  different 
parts,  which  none  but  an  expert  could  put 
toReTlier  and  form  into  a  machine,  could 
not  l)e  callei]  a  macliine.  as  required  liy 
the  contract,  until  attached  together,  and 
forndnj;'  a  comi)lete  harvester.  Under  all 
the  circumstances,  it  would  seem  that 
both  parties  ccmteinplatpd  that  the  ma- 
chine should  be  delivered  in  ;i  condition 
fit  for  use  on  or  Ijefore  .July  l.'itli.  Certain 
it  is  that  tlie  whole  tenor  of  defendant's 
testinxmy  was  to  that  effect,  and  he  had 
a  riiclit  io  go  to  the  jury  upon  that  the- 
ory.    If   the  jury  so  found,  tlie  nuestion  of 


reasonable  time   would  be  out  of  the  case 

entirely. 

We  are  referred  by  plaintiff's  counsel  to 
portions  of  defendant'sevidence  which  are 
claimed  to  establish  the  plaintiff's  theory 
that  there  was  no  arrangement  that  the 
machine  should  be  set  up  on  or  before 
July  loth.  Be  this  as  it  may,  the  testi- 
mony of  the  defendant, as  a  whole,  tended 
to  support  his  theory  of  the  contract,  and 
the  jury  should  have  determined  its  weight 
and  bearing.  This  they  were  not  per- 
mitted to  do. 

The  judgment  is  reversed,  with  costs, 
and  a  new  trial  granted. 

The  other  justices  concurred. 


WAHDc.  SHAW. 


845 


"WARD  T.  SHAW.  fldence  in  reposed,  credit  is  given,  and   the 

^7  •Wond   d(u.\  property  piisHeH.     ThiH  wfiH  ho   decided   In 

U   vvena.  lift.)  Cliapniun  v.  Lalhrop,  B  Cowen.  110,  nnd  1b 

Siiprome  Court  of  New  Yorli.    July  Term,  1831.  i  supported  by  the  caseH   there  cited,  HuB- 

,,  ,  ^,  ^      .    .,       Key    V. 'rhoriitiiii,  4   Musb.   40.'i,   Tooke   v. 

l^rror  from    the  Huperior  court    of    the    H„|iin,; worth,  ,-,  T.    K.   232,  and    uIho   by 

city  and  county  of  New  Yorli.    ^\  ard  sued    jj^rriB    v.  Smith,   3   Serg.  &  Ha  wle,  20,  24, 

Shaw  in  an  action  of  trover   or  two  oxen     and   by  Chancellor   Kent,   2   Kenfs  Com. 

lieuiK  fat   cattle,  taken    by    hiin  as  sheriff   g,,]^    But  where  part  only  of  the  property 

oiitof  the  possession  of  one  (raw  buck,  by  U,„a    ,,ppQ    delivert-d,  without  deinandins 

?,','''.".*'   °^,""   ''^^^■"""n   in   favor    of    one   po„   .li^,,,.^    ^y^,,   ^,,g  condition,  the   ven- 

Platt.     The   o.xen   came  into    the   posses-   ,jor  may  refuse  to  deliver  the  residue  until 


sii.n  of  Crawbuck  uiiiler  these  circum 
stances:  he  was  a  butcher  and  agreed  to 
purchase  tlieiu  of  Ward  at  §7.50  for  each 
cwt.,  which  the  quarters  should  weijili 
wlien  slautchtered,  he  to  take  the  cuttle 
iiuo  his  possession,  prepare  them  for 
slaugliterinfj,  Blaushter  them  in  the  week 
in    which    the    contract    was    made,   and 


performance  of  the  condition.  Payne  v. 
Shnilbolt,  1  Camp.  427.  2.  If  the  vendor 
deliver  the  KOods,  accom|>anieil  with  a 
ileclaration  that  hedoesnot  considerthein 
sold  until  payment  is  made,  nccordinK  to 
a  previous  contract,  the  sale  is  condition- 
al, nnd  the  property  does  not  pass  by  the 
delivery    as     between   the   parties  to   the 


when  slaughtered  take  the  quarters  to  ,  j,„,^.  jiussev  v.  Thornton,  4  .Mass.  405; 
market,  nei«li  them,  and  pay  for  the  cat-  \,.,,.„j„„  v  '  Baldwin,  17  Id.  (iO(!.  Two 
tfe  the  amount  the  weight  of  the  quarters  t|,j„^,„  „re  essential  to  the  transfer  of  the 
would  come  toat$7..')(lforeachcwt..  which  ^jji^,  t„,,ersimal  property  upon  a  cash  sale: 
sum  was  to  be  received  by  Ward  m  full,  ,,y„„.nt  ,^^l„.  ^.gtjjpy,,„,l  actual  or  con- 
as    well   of  another  parts  of  the  cattle   ns^^^-y^.jj^.g    jjeii^erv    bv    the    ven.ior.     The 


the  quarters.  Crawbuck  took  the  cattle 
into  his  posses.sion,  and  on  the  same  day 
they  were  levied  upon  under  Piatt's  execu- 
tion, which  was  issued  on  a  judgment  ob- 
tained previous  to  the  contract  between 
Ward  and   Crawbuck,   and    taken    away 


first  may  lie  waived  by  the  vendor,  and 
tlie  cases  above  cited  show  that  an  abso- 
lute delivery  is  such  waiver,  but  that  a  de- 
livery subject  to  the  condition  of  payment 
is  not.  'i.  It  is  also  a  settled  principle, 
that  where   any. thing  remains  to  be  done 


On    the  trial   of   the  cause,   the   presiding  ;  ,,^,  t,,e  ^.gn,,,,^   ijefore  the  article  is  to  be 


judge  charged  the  jury,  that  the  contract    ^ ^ 

between  Ward  and  Crawbuck,  and  the  1 '.",agyg^'""y,")'"in "tiie  i 
delivery  of  the  cattle  to  Crawbuck  vested  Meyer,  6  East,  ()15,  w 
the  title  and  ownership  in  Crawbuck,  and 
that  they  were  subject  to  the  execution. 
The  plaintiff  exce|)ted  to  the  decision. 
The  jury  found  for  the  defendant,  and  the 
superior  court  refused  on  motion  to  set 
aside  the  verdict  (  Mr.  Justice  Oakley  dis- 
senting. The  plaintiff  sued  out  a  writ  uf 
error. 

S.  P.  Staples,  for  plaintiff  in  error.  J. 
(J.  Grim  and  J.  R.  Whiting,  for  defendant 
in  error. 


delivered,  the  right  of  property  has  not 
case  of  Hanson  v. 
here  a  quantity  of 
starch  was  contracted  to  be  sold  at  a  cer- 
tain price  per  hundred,  the  vendor  gave 
the  venilee  an  order,  addressed  to  the 
keeper  of  the  warehouse  where  the  starch 
lay,  directing  him  to  weigh  and  deliver 
all  his  starch,  it  was  held  that  the  prop- 
erty did  not  pass  before  the  weighing, 
whicli  was  to  precede  the  delivery  and  to 
ascertain  the  price.  The  language  of  Lord 
F^llenborougli  in  that  case  is  applicalde 
here:  "By  the  terms  of  the  bargain,  two 
tilings,  in"  tlie  nature  of  conditions  or  pre- 
By  the  court,  SAVAGE,  C.  J.  The  ques- ,  liminary  acts,  necessarily  preceded  the  ab- 
tion  is  whether  Crawbuck  liad  an  interest  !  solute  vesting  in  them  (the  purchasers) 
in  the  cattle  which  could  be  sold  on  exe- !  the  property  contracted  for.  The  first  of 
cntioii.  The  sheriff  and  the  plaintiff  in  the  i  them  is  one  which  does  so  according  to 
execution  are  possessed  of  the  rights  of  1  the  generally  receive<l  rule  of  la  w  in  con- 
Crawbuck  and  no  more.  Had  Crawbuck  ;  tracts  of  sale:  to  wit,  the  payment  of  the 
sold  the  cattle  to  a  purchaser  for  valuable  price  or  consideration  for  the  sale.  The 
consideration,  without  notice  of  tlie  terms  I  second,  which  is  the  act  of  weighing, 
on  which  he  iiossessed  them,  other  consid-i  does  so  inconsequence  of  the  particular 
erations  might  prevail;  but  in  this  case  j  terms  ot  this  contract,  by  which  the  price 
no  newcre<lit  has  been  given  to  Crawbuck  is  made  to  depend  upon  the  weight.  The 
in  consequence  of  his  having  the  cattle  In  weight  therefore  must  be  ascertained.  In 
his  possession.  Platfs  debt  ac-.-rui'd  an- i  order  that  the  price  may  be  known  and 
tecedent  to  the  transactions  in  (inestion,  paid."  Vide  Cutwater  v.  Dodge,  7 
nnd  of  course  was   not   contracted    upon    Cowen.  S6. 

the  credit  of  this  proiierty.  If  he  fails,  he  i  The  sale  being  for  cash,  nnd  by  weight, 
is  in  no  worse  situation  "than  he  was  be-  the  vendor  is  not  bound  to  deliver  until 
fore  the  sale  of  the  oxen.  ;  payment  is   made.      Payment   cannot   he 

The  question,  then,  is  one  between  ven-  nia<le  until  the  price  is  ascertained  liy  the 
dor  and  vendee,  and  as  between  them  cer-  act  of  weighing.  Should,  therefore,  the 
tain  principleshnvebeen.-ettled.  1.  Where  vendee  refuse  to  slaughter  the  oxen  ac- 
no  credit  is  agreed  to  be  given  for  the  cording  to  contract,  and  put  them  to 
price  of  an  article  sold,  the  payment  and  work  on  a  farm,  the  vendor  may  retake 
delivery  are  concurrent  acts.  The  v?ndor  them.  Should  he  refuse  to  pay,  after 
ma V  refuse  to  deliver  without  pavment;  weighing  the  quarters,  the  owner  may 
but"  if  hedoes  ileliver  freelvand  absolutely,  taki-  possession  <if  his  sljiughtered  cattle, 
and  without  any  fraud  on  the  part  of  the  for  the  property  has  not  pa.ssed  under 
vendee  the  condition  of  pavment  simulta-  such  a  contract,  until  payment  is  made  or 
neously  with  the   delivery  is  waived:  ccui-    waived.    The  terms  of  thi- contract  in  this 


846 


WARD  c.  SHAW. 


case  forhid  the  ideu  of  a  waiver  of  poy- 
meiit  when  the  cattle  were  delivered  to  be 
prepared  for  slaughter.  The  rule  laid 
down  in  llauson  v.  Meyer  is,  that  the 
property  does  not  pass  when  any  thins 
remains  to  be  done  by  the  vendor;  when 
the  thinir  to  be  done  is  necessary  to  ascer- 
tain the  price,  and  tlie  sale  is  for  cash,  it 
can  make  no  difference  whether  that  thing 
is  to  bi!  done  by  the  vendor  or  vendee. 
The  property  is  not  to  pass  till  payment; 
the  price  must  i)recede  tlie  payment,  and 
until  the  price  is  ascertained,  payment  can- 
not be  made  or  waived,  unless  by  express 
terms;  the  acts  of  the  vendor  cannot  be- 
fore that  time  be  construed  into  a  waiver. 
This  case  is  unlike  most  of  the  English 
cases,  where  the  pro|»erty  was  in  n  ware- 
house of  a  third  person.  I  put  the  case 
upon  its  own  circumstances;  the  delivery 
wan  for  a  special    purpose,   not   an    abso- 


lute delivery  to  the  vendee  as  such,  but 
rather  as  bailee.  There  was  an  act  to  be 
done  to  ascertain  the  price.  In  general, 
the  act  of  weigliing  or  measuring  is  to  be 
done  by  tlie  seller,  but  parties  have  a  right 
to  stipulate  that  the  purchaser  shall  do 
such  act.  It  is  sufficient  that  the  vendor 
has  an  interest  in  the  act  to  he  done,  and 
has  a  right  to  l)e  present;  when  the 
weight  is  ascertained,  tlien,  and  not  be- 
fore, can  the  vendor  demand  payment. 
If  payment  is  then  made  or  waived,  the 
I)roperty  passes  absolutely,  otherwise 
not.  If  I  am  correct  in  this  view  of  the 
case,  Crawbuck  had  no  interest  in  the  cat- 
tle which  could  be  sold  on  Piatt's  execu- 
tion. I  am  of  opinion,  therefore,  that  the 
court  below  erred,'and  that  the  judgment 
must  be  reversed  ;  a  venire  de  novo  to  is- 
sue by  that  court,  and  the  costs  to  abide 
the  event. 


WATSON  V.  UOODE. 


849 


WATSON  V.  ROODE. 

(46  N.  W.  Rep.  491,  SO  Neb.  204.) 

Supreme  Court  of  Nebraska.     St'pt.  17,  1890. 

Error  to  dislriut  court,  (iajre  county; 
Mouiii.s,  Ju(l;if. 

II.  S.  bibi)  Hnd  ./.  E.  Hush,  for  pluinliff 
in  error.  (Jiifms  <t  Itinnker  nnd  Uiizlvtt 
<f-  lliites,  for  dtfi'iKlant  in  error. 

NonvAi.,  J.  This  action  wns  coni- 
mcncpil  by  OrnnsH  A.  Hoode  to  recover 
jlaiuaereK  for  an  allcircl  lireacli  of  warran- 
ty Riven  hy  .Tosepli  Watson  on  the  Hale  l)y 
him  to  Roode  of  a  Htallion.  Tlie  amend- 
ed petition  alleges  "  tliat  on  tlie  IStli  day 
of  Xovenilier,  lss4,  tlie  defemlant,  as  an 
inducement  to  plaintiff  to  purcliase  fi-oni 
him  a  certain  ini]iorted  black  stallion, 
called  'Knialit  of  t'>e  Sliiies.'  for  the  sum 
of  $2,000, -vvarrantecl  the  said  horse  to  be 
a  foal  setter,  and  sound  in  every  respect, 
except  an  enlargement  of  said  horse's  baj;, 
■which  was  caused  by  a  kick,  and  repre- 
isented  the  said  horse  as  b(-ing  then  and 
there  sound;  that  the  title  to  the  same 
was  clear,  and  that  the  said  horse  was 
re^i.stered  in  theStud  Book  of  England, as 
well  as  his  sire  and  dam  and  would  furnish 
the  secretary's  receipt  for  such  pedigree; 
and  plaintiff,  relying  upon  said  warranty 
and  statements,  purchased  said  horse  from 
the  (Kfrndant  for  the  sum  of  .?!.'. IMMI.  then 
duly  paid.  Plaintiff  avers  that  said  horse 
at  the  time  of  said  sale  was  unsound  in 
this:  that  the  enlargement  of  said  horse's 
bag  was  hernia  at  the  time  of  said  sale, 
and  in  no  way  was  he  free  from  diflieulty 
or  trouble,  and  was  of  no  value  whatevei-: 
that  one  testicle  of  said  horse  was  mashed 
and  completely  ruined,  and  was  of  no  ben- 
efit to  the  said  horse;  and  on  account  of 
said  hernia,  mashed  testicle,  and  urethral 
gleet,  all  of  which  the  said  horse  had  at  the 
time  of  the  purchase,  combined  to  cause 
the  death  of  said  horse,  to-wit,  on  the 
](;th  day  of  .lune,  issfi.  Plaintiff  avers 
that  the  pedigree  of  said  horse  was  not  as 
warranted  by  the  defendant,  and  that  the 
said  defendant  neverhas  furnished  the  sec- 
retary's receipt  for  such  pedigree,  as  agreed 
to  have  been  done  on  the  part  of  the  de- 
fendant. Plaintiff  avers  that  said  horse 
was  not  a  good  foal  getter.  And  by  rea- 
son of  above  premises  plaintiff  has  sus- 
tained dj'.mages  in  the  sum  of  ?.').000. " 
The  answer  of  the  defend.mt  ailmils  the 
sale  of  the  horse  to  the  plain  tiff,  and  denies 
all  the  other  allegations  of  the  amended 
petition.  On  the  trial  of  the  case  to  a 
jur.v,  a  verdict  was  returned  for  the 
plaintiff,  assessing  his  damages  at  ?!.- 
47(1. TiO.  The  defendant  filed  ;i  motion  for  a 
new  trial,  containing  :{2  assiginuenls  of 
error,  which  motion  being-overruled,  judg- 
ment was  rendered  upon  the  verdict. 
Eight  of  the  assignments  arc  based  upon 
the  rulings  of  the  trial  court,  uiion  the 
admission  and  exclusion  of  testimony 
The  plaintiff  upon  the  trial  offeird  in  evi- 
dence the  following  instrument :  "  DilliT. 
Neb.,.\ov.,ls.s4.  In  consideration  of  $-.'.0iMi. 
receipt  whereof  is  hereby  acknowledged. 
I  have  this  day  sold  my  imporled  black 
English  draft-horse.  -Knight  of  the 
Shires.'  to  O.  A.  R.iode,  and  hereby  agree 
LAW  SALKS— 54 


to  warrant  and  defend  the  title  to  said 
horse  from  all  claims  whatsoever,  and  I 
also  guaranty  s.-iid  hor.-^e  to  be  a  foal  get- 
ter, and  I  fnrt  her  state  that  Iheenlarge- 
nient  of  said  horse's  bag  was  caused  liy  a 
kick, . '11111  in  no  way  troidiles  him.aiid  I  fur- 
ther guaranty  the  said  horse  to  be  regis- 
tereil  in  the  .Stud  JSook  of  England;  also 
his  dam,  as  well  as  his  sire;  and  will  fur- 
nish the  secretary's  receipt  for  such  pedi- 
gree. It  is  furtheragreed  lhat,if  said  ()..\. 
Itoode  is  un.'ibic  to  pay  a  note  liiarin^ 
even  date  w-ith  this  agreement  from  the 
proceeds  of  the  first  ye;ir'H  services  of  said 
horse,  he  shall  have  the  privilege  of  an- 
other year's  time  on  ifL'iHI.  .losKfil  Wa'!- 
sr).\."  'I'he  defemlant  objected  to  the  re- 
ceiving in  evi(  enee  of  this  paper,  as  incom- 
petent, irrelevant,  immaterial,  and  inad- 
missible under  the  pliMdings,  which  objec- 
tions wcie  overruled,  and  the  d"fendant 
took  an  exeejition.  it  will  be  oliserved 
that  it  is  nowliere  alleged  in  the  amended 
Iietition  that  the  warranty  upon  wliicli 
the  action  is  founded  was  in  writing,  nor 
is  a  copy  of  the  instrument  attached  to 
the  i)|pading. 

It  is  cl.-iimed  by  the  plaintiff  in  error 
that,  as  the  [ileading  does  not  aver  that 
the  warranty  was  in  writing,  thepresump- 
tion  is  that  it  existed  in  parol,  and  that  it 
was  incompetent  to  prove  a  written  war- 
ranty. Theludiana  cases  cited  bycounsel 
sustain  that  view,  but  they  are  believed 
to  be  contrary  to  the  weight  of  authority. 
The  rule  as  laid  down  in  thedccislons,  and 
in  the  works  on  pleadings,  is  that  in  an 
action  upon  a  written  contract  it  is  not 
absolutely  necessary  that  the  plaintiff 
should  allege  in  liis  pleading  that  the  con- 
tract was  in  writing;  and  tluit  on  the 
trial  inder  such  a  pleading  the  writing  is 
adminsible  in  evidence.  Maxw.  PI.  &  Pr. 
'.»!);  Steph.  PI.  331:  Abb.  Tr.  Ev.  .".22;  Tut- 
tle  V.  Hannegan.  TA  N.  Y.  listi;  .Marston  v. 
.Swett.  li(i  N.  Y.  L'Ot;.  Where  the  contract  is 
one  that  the  law  re(|uires  to  be  in  writing, 
and  the  ph'ading  based  tliereou  is  silent  aa 
to  whether  it  is  in  writing  or  not.  the  law 
presumes  that  a  written  contract  w-as  in- 
tended; but  where  the  contract  is  valid, 
wluther  it  be  in  writing  or  in  parol,  there 
is  no  such  presumi)tion.  Under  the  alle- 
gations of  the  petition  in  this  case,  the 
written  warranty  wascompetent  evidence. 
The  defendant  had  an  undoubted  right, 
had  he  moved  at  the  proper  time,  to  have 
reipiired  the  plaintiff  to  make  his  petiti(<n 
more  certain  and  siiccilic,  by  stating  that 
the  warranty  wjis  a  w-ritten  one,  and  by 
attaching  a  copy  ther<'of   to  the   petition. 

The  i)laintiff.  on  rebuttal,  introiluced  in 
evidence  tliefollowing  paper,  siirned  liy  the 
defendant,  and  marked"  Exhibit  15:"  -fSea- 
trice.  .Veil. ..April  •J4.1^^.■>.  To  whom  it  may 
concern:  I.  .loseidi  Watson,  upon  honor, 
state  that  I  have  known  the  imported 
horse.  'Knight  of  the  Shins."  since  he  wa« 
imported  in  l"^'^•.'.  by  .Mr.  15.  Holmes,  of 
.Midine.  III.,  and  know  him  to  be  a  good 
and  sure  foal  getti-r.  as  compared  with  the 
best  of  horses,  nnd  any  n-ports  ti>  the  con- 
trary are  without  foumlation  and  mnli- 
lious.  111-!  colt,  owned  by  .Mr.  Thomas  Mc- 
Ennghlin.  .Moliae.  III.,  took  first  premium 
at  the  Kairiiury.  III.,  fair,  Mud  I  will  deposit 
ten   dollars    with    any    man    that    he   can 


8-.0 


WATSON   V.  ROODE. 


hIiow,  lit  tliP  Gncoconnty  fnir.  five  i)f  lieKt 
colts  Himl  by  any  horse  in  tlie  ruuiity. 
Josisi'ii  Watson.  "  TlKMlefeiidaiit  ohjeeted 
to  tlie  reeeivinff  of  tliis  paper  in  evidence 
as  liein;;-  immaterial,  irrelevant,  and  not 
proper  rebutting-  testimony.  Tliis  oljjec- 
tion  was  ovennled.  No  testimony  had 
l)een  introduced  by  tlie  defendant  that 
made  this  pajier  competent  rebuttins  tes- 
liniony.  It  is  urged  by  the  defendant 
that,  as.  the  writing  was  ni.-ide  l)y  the  de- 
fend.-int  an<l  delivered  to  the  plaintiff  sev- 
eral months  after  the  purchase  of  the 
liorse.  it  thereforecould  not  be  relied  upon 
by  the  plaintiff  as  a  warranty  of  the  hor.se, 
for  the  obviou.s  reason  that  no  new  con- 
sideration ijassed  for  the  giving  of  this 
writing.  Had  this  paper  been  made  the 
l)asis  or  foundation  of  tlie  suit,  the  posi- 
tion of  the  defendant  would  be  well  taken, 
for  the  rule  undoulitedly  is  that  where  the 
warranty  of  an  article  is  given  after  the 
sale  has  been  fully  made,  and  the  property 
deliv<'red  to  the  purchaser,  it  must  be 
based  upon  a  new  consideration.  iJ  Bcnj. 
Sales,  §  'J:JU;  Moreliouse  v.  Comstock,  42 
Wis.  (!2t;.  But  this  jiaper  was  not  claimed 
by  tlie  plaintiff  to  betlie  warranty  declared 
upon,  nor  was  it  received  in  e\  idence  for 
that  purpose.  It  was  contended  by  the 
defendant  on  the  trial  in  the  lower  court 
that  tliemeauingof  the  term  "foal  getter," 
as  used  by  the  defendant  in  the  written 
warranty  given  at  the  time  of  the  sale, 
wasthat  the  horse  was  capable  of  produc- 
ing a  foal,  and  did  not  mean,  and  was  not 
so  understood  by  the  jiarties  at  the  time, 
that  tlie  liorse  was  asure  foal  getter.  'I'he 
solo  iiurpose  and  object  in  introducing 
this  paper  in  evidence  was  to  show  what 
the  defendant  meant  by  the  term  "foal 
getter,  "and  to  show  what  construction 
tlie  defendant  had  given  the  terni  used  in 
the  warranty.  It  should  have  been  given 
in  evideni'e  in  chief,  and  not  on  rebuttal. 
The  horse  was  purchased  for  the  stud,  as 
the  defendant  at  that  time  fully  under- 
stood, and  it  is  not  reasonable  to  suppose 
that  either  pai'ty  to  the  agreement  at  the 
time  expected  that  the  purchaser  was  pay- 
ing $J,  00  for  a  horse  that  was  totally  un- 
lit for  the  purpose  for  which  he 'was 
bought.  The  horse,  prior  to  the  sale,  had 
received  a  kick,  whicli  caused  an  enlarge- 
ment of  the  bag.  The  defendant,  by  his 
warranty,  guarantied  that  this  injury  in 
no  way  troubled  him ;  in  other  words, 
that  it  did  not  injure  him  as  a  "foal  get- 
ter."  The  warranty,  when  read  in  tlie 
light  of  the  construction  subsequently 
placed  thereon,  by  the  defendant,  and  in 
view  of  the  jmrpose  for  which  the  horse 
was  purchased,  and  the  price  paid,  is  in 
effect  a  guaranty  that  the  injury  caused 
by  the  kick  did  not  unfit  the  horse  for  the 
stud,  and  that  he  was  capable  of  produc- 
ing the  usual  percentage  of  foals.  The 
testimony  fully  establishes  that  the  injury 
unfitted  the  horse  for  breeding  purposes, 
and  that  he  subserjueutly  died  on  the  16th 
day  of  .June,  1MS(|.  from  the  effects  of  the 
injury  he  bad  n'ceived  prior  to  the  sale  to 
the  plaintiff.  During  the  season  of  ISs.j, 
the  horse  was  bred  to  some  80  mares,  and 
out  of  the  number  only  1.5  mares  were  with 
foal,  anil  ))ut  0  of  these  had  living  colts. 
The  testimony    likewise  shows    that    the 


usual  percentage  of  foals  is  two-thirds  of 
the  number  of  mares  covered.  The  defend- 
ant insists  that  the  defect  in  thehorse  was 
plain  and  noticeable  at  the  time  of  the 
sale;  that  it  was  of  such  a  character  as  to 
require  the  plaintiff  to  take  notice  of  its 
extent  and  effect;  and,  tliat  the  injury  be- 
ing plain  and  visible  to  the  buyer,  the 
warranty  did  not  cover  such  defect.  It  is 
true  that  the  evidence  discloses  that  the 
blemish  on  the  horse  was  apparent,  and 
was  observed  by  the  plaintifl'  prior  to  tin' 
sale,  yet  it  was  impossible  for  him  to  tell 
whether  the  defect  was  of  such  a  character 
as  to  injure  the  horse  as  a  foal  getter. 
The  defendant,  by  his  contract,  warranted 
against  this  hidden  imperfection,  arjil  he 
cannot  e.scape  lialiilit.v  because  the  injury 
was  one  that  left  an  external  blemish 
plainly  visible.  While  a  general  warranty 
does  not  usually  extend  to  impeifectious 
known  to  both  parties,  yet  it  is  eipially 
w-ell  settled  that  the  seller  may  bind  him- 
self, as  against  patent  defects,  U  the  war- 
ranty is  MO  worded.  Pinney  v.  AndruK, 
41  Vt.  (".1 ;  Bank  v.  Grindstatf,  45  Ind.  ISs. 
The  contract  of  warranty  in  the  case  at 
bar  expressly  stipulates  that  "  the  enlarge- 
ment of  the  horse's  bag  in  no  way  troubled 
him,"  and  is  a  guaranty  against  the  ex- 
tent of  the  injury.  The  defendant  having, 
by  his  contract,  expressly  warranted 
against  the  defects  of  the  horse,  he  cannot 
relieve  himself  from  liability  by  showing 
that  the  plaintiff  was  aware  at  the  time 
of  the  sale  that  the  horse  was  injured. 

It  was  admitted  by  the  defendant  on  the 
trial  that  the  horse  was  not  registered 
in  the  Stud  Book  of  England.  That  the 
horse  was  warranted  to  be  so  registered 
is  not  denied.  The  defendant  on  the  trial 
sought  to  escape  the  force  and  effect  of 
this  clause  of  his  written  warranty  by  at- 
tempting to  show  that,  at  the  time  of  the 
sale,  he  informed  the  plaintiff  that  the 
horse  was  not  registered.  Upon  the  cross- 
examination  of  the  plaintiff,  Koode,  he 
was  asked  b.y  the  defendant's  counsel  this 
question:  "At  the  time  the  writing  was 
made,  [lieing  the  warranty  in  (juestion,] 
I  will  ask  you  to  state  to  tliejury  whether 
or  not  Watson  didn't  tell  you  that  the 
liorse  was  not  registered  in  the  Stud  Book 
of  England."  The  iilaintiff's  objection  to 
the  witness  answering  the  question  was 
sustained,  and  the  answer  was  not  taken. 
This  ruling  of  the  court  is  now  assigi.ed 
as  error.  The  testimon.y  sou.glit  to  be 
elicited,  had  it  been  received,  would  have 
contradicted  and  varied  the  written 
agreement  of  the  parties.  It  is  too  well 
established  to  recpiire  the  citation  of  au- 
thorities that  i)arol  testimony  cannot  be 
received  to  contradict  or  var.v  a  written 
contract.  It  is  claimed  by  the  defendant 
that  the  jmrpose  of  this  testimony  was  to 
show  that  the  defendant  had  knowledge 
that  the  horse  was  not  registered,  and 
that  the  defendant  could  not  have  relied 
upon  the  statement  in  the  warranty  that 
the  horse  was  registered,  and  therefore 
no  claim  for  damages  can  be  based  upon 
the  fact  that  the  horse  was  unregistered. 

While  it  is  true  that  in  a  suit  on  a 
breach  of  warranty  against  defects  In  the 
article  sold  the  seller  may  prove  that  the 
defects  were  of  such  a  character   that   the 


WATSOX  V.  ROODE. 


851 


purdinser  must  ha  vo  known  of  their  exist- 
ence, or  tluit  tlie  l)iiyt'r  Uiicw  of  tlii'ni  prior 
to  tlic  Kiilc,  for  tlic  i)uri)()se  f)f  wliowing 
tliat  the  plaintiff  <li<l  not  rely  upon  the 
\vi\rriinty,  vet  it  does  not  follow  that  it 
is  Cijiiipctent  to  prove  that  tlie  seller, 
during  tin;  iiegolialiotis  Icadint;  ui)  to  the 
sale,  made  representations  to  tlie  pur- 
chaser directly  contradictory  of  his  writ- 
ten warranty  snhseiiuently  made.  No  case 
has  l)een  cited  Ijy  counsel  for  plaiitiff  in  er- 
ror lioldinK  the  doctrine  contended  for  by 
him  in  tlii.s  case,  nor  have  we  been  able  to 
find  such  a  case  reported  in  the  bool<s. 
To  permit  such  testimony  to  be  received 
woidd  violate  the  familiar  rule  of  evidence 
above  referred  to.  There  was  therefore 
no  error  in  siistniniiiR  the  plainliffs  ol)jcc- 
tion  to  the  question  propounded. 

After  the  defendant  had  closed  his  case, 
the  plaintiff  i)ut  in  evidence,  over  the  ob- 
jection of  the  defendant,  what  purported 
to  be  a  copy  of  a  letter  written  li.v  the 
plaintiff  to  the  defendant,  on  the  iMth  day 
of  Feluuar.y,  ISSii.  Among  the  olijectiona 
made  by  the  defendant  at  the  time  was 
that  no  foundation  had  been  laid  for  its 
introduction,  and  that  no  notice  was 
served  upon  the  defemlant  or  his  attor- 
neys to  pro<luce  the  original.  Xo  founda- 
tion was  laid  for  the  introduction  of  the 
copy.  It  does  not  ai)pear  that  the  orig- 
inal could  not  have  heeu  produced  at  the 
trial,  nor  was  it  sliown  that  the  paper 
offered  was  a  correct  copy  of  the  original. 
Numerous  other  errors  are  assigned  in  tlie 
brief  of  counsel  tortile  plaintiff  in  error, 
based  ujion  the  rulings  of  the  trial  court 
iifion  the  admission  of  testinion.v.  which 
we  will  not  take  the  time  to  notice,  as 
many  of  them  are  disposed  of  by  what  we 
have  said  in  tliis  opinion,  an<l  the  other 
errors  are  not  likely  to  occur  upon  a  re- 
trial of  the  case. 

Nine  assignments  in  the  petition  in  error 
are  predicated  upon  the  giving  of  certain 
instructions  to  the  jur.v,  but.  as  they  are 
not  referred  to  in  the  brief  t)f  plaintiff  in 
error,  these  assignments  are  abandoned. 
The  record,  howeviT,  discloses  that  no  ex- 
ception was  taken  to  any  iiaragrapli  of  tlie 
charge  of  the  court  until  after  the  verdict 
was  returned  into  court.  .\  party  cannot 
wait  until  after  he  learns  that  an  unfavor- 
able verdict  has  been  received  and  then 
except  to  the  charge  of  the  court,  and  as- 
sign for  error  the  giving  of  such  instruc- 
tions. An  exception  must  be  taken  when 
th(>  instructions  are  given,  in  order  to 
have  the  same  considered  by  the  review- 
ing court. 

The  defendant  requested  12  instructions 
to  be  given  to  the  jui-.v,  all  of  which  were 
refused.  These  reciuests  are  (luitelengthy, 
and  it  is  not  deemed  imiiortant  that  they 
should  all  be  copiiMl  into  the  opinion. 
The  first  and  twelfth  reciuests  correctly 
stated  the  rule  that  the  burdi'ii  of  proof 
was  ujion  the  plaintiff.  The  substance  of 
these  requests  is  contained  in  the  third 
paragrajdi  of  tlie  charge  given  by  the 
court  on  its  own  motion,  and  no  error 
was  committed  in  refusing  them. 

The  second  re(iuest  is  as  follows:  "The 
court  instructs  the  jury  that  if  they  believe 
from  the  evidence  that  the  plaintiff.  Or- 
ange A.  Itooile,  is  a  person  of   bad  reputa- 


tion for  truth  and  veracity  In  the  neigh- 
borhood where  he  resiiles,  then,  as  a  mat- 
ter of  law,  tnis  fact  tenils  to  disereilit  his 
testimony,  and  the  jury  may  entirely  dis- 
regard it,  except  in  so  far  as  he  is  corrob- 
orated by  other  credible  testimony,  or  by 
facts  and  circumstances  proved  on  the 
trial."  The  defendant  introduced  several 
witnesses,  who  testified  that  the  plain- 
tiff's reputation  for  truth  and  veracity  in 
the  neigliborhood  where  he  lived  was  bad. 
In  view  of  this  testinion.v,  the  jur.v  should 
have  been  told  what  weight  should  be 
given  to  tli?  plaintiff's  testimony.  The  re- 
quest contained  a  correct  statenient  of  the 
law,  and,  as  it  was  not  covered  by  the  in- 
structions given,  it  was  err(jr  to  refuse  it. 

Tlie  substance  of  the  third  request  is 
that  the  warrant.v  nuide  by  the  delendant 
on  the  27th  day  of  .\pril."lss.^,  after  the 
contract  of  sale  was  concluded,  being 
without  consideration,  is  not  binding  on 
the  defend.int.  There  is  in  the  record  no 
testinion.v  tending  to  show  that  a  war- 
ranty was  made  on  that  date.  Doubtless 
the  defendant  meant  Kxhibit  B.  that  was 
made  on  .\i)ril  2-4th.  As  heretofore  stated, 
this  exhibit  was  in  no  way  relied  upon  as 
a  warrant.v,  or  made  the  foundation  of  the 
action,  and  the  recjuest  was  not  a|iplica- 
ble  to  tlie  testimony. 

Request  No.  4  was  rightl.v  refused.  It, 
in  effect,  stated  that,  if  the  horse  was  ca- 
tiablc  of  producing  a  single  foal,  then  there 
was  no  lireach  of  the  warrant.v  upon  that 
point.  The  defendant  was  not  entitled  to 
St)  favorable  an  instruction. 

The  defendant's  fifth  prayer  reads  "that 
although  the  ilefendant  warranted  in 
writing  the  stallion  'Knight  of  the 
Shires.'  to  be  registered  in  the  Stud  Hook 
of  Kngland,  also  his  ilani,  as  well  as  sire, 
jind  that  the  defendant  would  liirnisli  the 
sccretar.v's  receipt  for  such  pedigree,  still, 
if  the  jury  further  believe  from  the  evidence 
tliat  at  said  time  tlie  defendant  informed 
[ilaintiff  that  said  horse  was  not  regis- 
tered but  simpl.v  eligible  to  registry,  and 
that  said  pl;iiiitiff  knew  that  said  horse 
was  not  registered,  and  did  not  rely  on 
said  warrant.v  in  making  his  purcluise  of 
the  s;iid  hor.se,  the  plaintiff  could  not  re 
cover  for  a  breach  of  said  warrant.v.  as  in 
law  it  wouhl  be  no  warrant.v  unless  the 
plaintiff  relied  upon  it  in  making  the  pur- 
cliase. "  No  testinion.v  was  given  that 
the  defendant  informed  the  plaintiff  that 
the  horse  was  not  registered.  Such  testi- 
mony was  excluded,  and  we  think  rightly 
so. 

The  sixth  and  ninth  instructions  re- 
fused, stated  in  substance  that  defects  or 
blemishes  which  are  known  to  the  pur- 
chaser must  lie  expressly  warranted 
against  to  make  the  seller  liable  for  such 
defects.  We  find  no  fault  with  the  state- 
ment of  the  law  in  these  instructiima. 
The  plaintiff  did  not  seek  to  rixover  for 
defects  that  were  visible  at  the  time  of  the 
purcliase.  and  that  were  not  expn'ssly  cov- 
ered by  the  terms  of  the  warranty.  The 
plaintiff  claimed  damages  becau.se  the 
horse  was  unregistered,  and  on  account 
of  the  injur.v  which  the  horse  had  nn-eived 
lirior  to  the  sale.  Roth  of  these  matters 
weri>. expressly  covered  by  the  warrant.v. 

The  eleventh  request  covers  thequestion 


852 


WATSON  V.  EOODE. 


of  roliance  by  the  purchaser  upon  the  war 
raiity.  It  is  as  follows:  "  (11)  The  court 
lartllor  instructs  the  jury  to  entitle  the 
plaintiff  to  recover  in  the  suit  it  is  not 
onlv  necessary  for  the  jury  to  find  from 
the'evidence  that  the  plaintiff  warrant- 
ed the  animal  in  question  as  alleged  in  the 
petition,  but  it  must  further  appear  from 
the  evidence  that  tlie  plaintiff  relied  upon 
said  warranty  in  maliins  the  purchase  of 
tlie  horse,  and  was  induced  to  make  said 
purchase  by  said  warranty,  and  it  must 
also  appear  from  the  evidence  that  the 
horse  was  not  as  warranted  at  the  time 
of  tlie  sale;  and,  unless  all  of  these  facts 
appear  from  the  evidence,  the  jury  should 


find  for  the  defendant."  The  law  un- 
doubtedly is,  and  has  been  so  declared  by 
this  court,  that  the  purchaser  of  personal 
property  must  have  relied  upon  the  statt?- 
ments  of  the  seller  as  to  the  quality  of  the 
article  sold,  in  order  to  make  the  repre- 
sentations a  warranty.  Little  v.  Wood- 
worth,  8  Neb.  2S1;  Hallidav  V.  BrigRs,  15 
Neb.  219,  18  N.  E.  Rep.  5.5.  This  instruc- 
tion stated  the  law  correctly,  and,  not  be- 
ing covered  by  any  of  the  instructions 
given,  should  not  have  been  refused.  For 
the  errors  pointed  out,  the  judgment  of 
the  district  court  is  reversed,  aud  the 
cause  remanded  for  further  proceedings. 
The  other  judges  concur. 


WELLS  V.  TUCKER. 


«5r. 


WELLS  V.  TUCKER  et  ux. 

(3  Bin.  300.1 

Supreme  Court  of  Pennsylvania.     March  30,  ISII. 

Tliis  WHS  iin  antion  of  trover  for  two 
Ijondx,  tried  under  the  Keneriil  iKHiie  iit 
the  nisi  priiis  in  Fpltrunry  last  before  .Mr. 
Justice'  Yeates. 

Kroiii  I  lie  report  of  liis  honour,  tlie  evi- 
denee  was  in  Kutjstnnue  tliis: 

Andrew  <'r,iiK,  the  intestate,  had  adopt- 
ed the  will'  of  Tucker  at  a  very  early  aire, 
and  maintained  her  in  liis  liouse  until  lier 
lliarria^e.  .\ftcr  tliat  event,  he  fre(]uently 
nuuiife.sted  Inn  kinilne.sH  lo  tier  f.-iniily.  and 
in  one  or  two  untinished  wills  which  he 
left  at  his  death,  appeared  to  have  de- 
fiij-ned  a  legacy  of  about  tlillll)  for  her  luis- 
lianil  and  children,  lie  died  onihe:.'(lth 
August  l.Sd.'i,  intestate  and  without  issue, 
leaving  a  widow,  a  lirother  and  sister, 
and  some  nephews  anil  nieces  the  cliildrtti 
of  deceased  Itrothers  and  sisters.  His 
wid  »vv,  who  by  the  law  of  Ni-vv  .lersey 
where  ho  had  livtd,  was  enlitled  to  half 
his  personal  estate,  pi'ovcd  upon  the  trial, 
that  aixiut  the  irth  of  Ausrust  Iso.^.,  her 
husband,  having  then  a  sUetch  of  a  will  in 
his  hand,  which  he  was  too  ill  to  linisli, 
said  to  In-r,  "  1  have  bonds  against  lii-n- 
janiin  TucUei'  (the  defendant)  to  the 
amount  of  about  flOdO,  whi'li  I  nive  to 
his  children  to  be  divided  between  them." 
He  tiild  her  where  they  were,  wrapped 
up  in  the  pigeon-hole  of  a  desk,  oi  which 
lu'  delivered  her  the  key,  and  recpiested  her 
to  tio  and  K'et  them.  She  aceordlunly  <iot 
them  and  locked  tlieui  up  until  after  liis 
ileatli,  when  she  delivered  them  to  the 
defendants.  .Vfter  the  delivery.  Tucker, 
imprudently,  but  not  with  any  dislmncst 
view, canceled  them,  and  imluced  the  orijr- 
inal  obligee,  who  had  assij;ned  them  and 
a  inortjrafie  for  securiiiK  them,  to  the  in- 
testate, to  cuter  satisfaction  of  reconl. 

.Indue  Yeates  charged  tlie  jur.v,  that  if 
Ihey  believed  the  evidence  of  .Mrs.  Craiii:. 
they  ou;iht  to  find  for  the  defendants,  as 
lie  was  of  opinion  that  the  delivery  of  the 
bonrls  to  the  wife  for  the  children,  made 
them  a  j;ood  ilonatio  causa  mortis. 

The  j\iry  found  for  the  Uefendaiits ;  mo- 
tion for  a  new  trial. 

lny:crsi)ll,  for  plaintiff.  Hallowell  and 
Ka  wle,  contra. 

TILtill.MAN,  C.  J.  This  is  an  action  of 
trover  for  two  bonds,  which  were  the 
property  of  A.  Crai;;,  the  plaintiff's  inlcM 
tate.  The  defendants  claim  them  as  a 
donatio  causa  mortis  inaile  by  .\ndrew 
CraiK  in  lbs  last  illness  to  tin-  children  of 
the  defendants.  Andrew  ("raisr  died  intes- 
tate, and  without  issue,  ami  the  jiitt  was 
proved  by  Theodosia  ("raiuc.  his  widow, 
who  is  entitled  by  law  to  one  half  of  her 
liusband's  |)ersonal  estate.  She  swore, 
that  the  jiift  was  made  by  her  husband 
about  three  days  before  his  deatii,  and 
the  bonds  delivered  to  her,  to  be  liy  her 
delivered  over,  and  that  she  kept  them 
locked  up  in  her  trunk  till  after  the  death 
of  her  husband,  when  she  (rave  ihiMii  to 
thedefendants  for  the  UHcof  their  children. 

The  lirst  le.ison  offered  for  a  new  trial, 
is  that  the  verdict   was   against    evidence. 


But  this  docH  not  appear  to  liave  lieen 
by  any  means  the  caKe;  for  the  witness 
who  proved  the  tri't  was  of  irrepro;ichable 
character,  anil  sweariiiii  ntraiiist  her  own 
interest.  Her  credibility  was  submitted 
to  the  jui-y,  and  I  eunnot  say  that  tliey 
were  wron^  in  believlntr  her. 

Tlie  secjud  reason  for  a  new  trial  is, 
tliat  there  was  no  deliver.v  of  the  lionilH, 
wliieli  is  essi'iilial  to  a  tiift  of  tins  kind  ; 
that  a  delivery  to  the  wife,  was.  ia  point 
ofluw.no  delivery  at  all,  and  that  the 
ju(l>;e  who  tried  the  cause  erred  in  not 
chartrinir  tlie  jury  aecordiu«ly.  This  i-  the 
only  point  for  consideration. 

.\  doniiiio  causa  mortis  is  a  -rift  of  n 
personal  ch;ittel.  made  by  a  person  in  liis 
last  illness,  subject  to  an  implied  condi- 
tion,  that  if  the  donor  recovers,  the  Kift 
shall  be  \oid.  So  also  it  shall  be  void,  if 
the  donee  dies  b.-fore  the  i.'onnr.  In  this 
and  some  other  circun.stanceh  (bi'inir  suii- 
ject  to  the  debts  of  tlie  donor,  etc.. )  it  is 
in  nature  of  a  legacy.  It  was  introdiieeil 
into  the  common  law  from  the  Koinaii 
civil  law,  but  not  in  the  full  extent  in 
which  it  is  rcciimiizcd  in  the  latter.  'I'lie 
civil  law  t;ikes  notice  of  tliree  different 
kinds  of  donationes  mortis  cuiisr,  to  sou.e 
of  which  deliver.v  is  essential,  hut  not  to 
all.  It  is  unnecessary  to  ini|uire  minutely 
into  tlie  civil  law,  because  I  consider  it 
as  settled,  that  to  ^ifts  of  this  kind,  uh 
incorporated  into  the  eomnion  law.  deliv- 
ery is  necessar.v.  The  whole  la  w  on  this 
subject  is  fully  laid  down  by  Lord  llard- 
wicke  in  Ward  v.  'I'nrncr.  2  Ves.  Sr.  4:il.  It 
was  formerl.v  doubted,  but  is  now  estab- 
lished, (as  conceded  by  the  plaintiffs  conn- 
sel)  that  a  bond  is  a  proper  siilject  of  this 
kind  of  jrift.  It  is  a  wise  principle  of  our 
law,  that  delivery  is  essential,  hecausv 
delivery  streiifrthenH  the  evidence  of  Ihe 
(lift.  Too  much  care  cannot  be  taken,  in 
insistinj.;  on  the  most  convin'dnH:  evidence 
in  cases  of  this  kind;  for  these  donations 
do  in  effect  amount  to  a  revocation  pro 
tanto,  of  written  wills:  and  not  beiiiu 
subject  to  the  forms  prescribed  for  nun- 
cupative wills,  they  are  certainly  of  a 
dangerous  nature.  Now,  let  us  consider 
the  delivery  which  was  made  in  tliis  ease. 
In  the  lirst  place,  it  was  not  to  the  donee, 
but  to  the  donor's  wife  to  be  by  her  de- 
livered over.  There  is  no  objection  to  this 
mode  of  delivery.  Whether  made  to  the 
donee  immediately,  or  to  another  for  liis 
use.  is  immateria!.  It  was  so  decided  in 
Drury  v.  Sniitli,  1  P.  Wnis.  J(i4.  The  cir- 
cumstance relied  on  b.v  the  plaintiffs  coun- 
sel, is.  that  the  delivery  to  tlie  wile  was  in 
fact  no  chaiiiie  of  possession,  because  Ihe 
possession  of  Ihe  wile  Is  the  possession  of 
the  husband,  and  the  wife  beinir  in  the 
husband's  power,  he  may  at  any  time 
take  back  the  possession,  and  thus  a  voiil 
the  cift.  To  tfive  this  obserx  ation  its  full 
force,  it  is  conteinlfd  on  the  part  of  the 
plaintiff,  that  a  tclfi  of  this  kind  passes  the 
property  immediately,  and  is  not  subject 
to  revocation  li.v  the  donor.  Without  ab- 
solutely comniittinsr  myself.  I  incline  to 
theopbiion.  that  in  this  as  in  several  otiier 
particulars,  it  partakes  of  the  nature  of 
a  leiracy.  and  is  revocable.  .No  rase  lias 
been  tiled  e.\;ictly  in  ii>  iiit  :  but  it  is  laid 
down    in  .\yl.  I'anil.    :>.'!1,    Ih.at    It    n.ay  hi- 


656 


WELLS  V.  TUCKER. 


revoked  by  the  donor's  repentiiis;  tiiereot; 
and  in  Jones  v.  Selby,  Prec.  Vb.  30(1.  the 
Lord  Chanc'-llDr,  in  delivering  his  o'linion, 
sni<l  to  tlie  counsel,  "voii  a>;ree  that  a 
donatio  causa  mortis  Ih  revocable  by  the 
tPMtator. "  It  is  true  that  in  the  argu- 
nn'nts  of  the  counsel,  as  reported,  no  such 
concession  ai)|)ears.  One  wouhl  liardly 
Rupriose  however,  that  the  chancellor 
would  have  used  those  expressions  unle.ss 
the  fact  had  been  so.  But  the  case  of  Mil- 
ler v.  .Miller,  3  I'.  Urns.  a.'iG.  is  strong  to 
the  point  of  delivery.  Indeed,  the  argu- 
ment from  that  case  is  a  fortiori;  for  there 
the  donation  was  to  the  wife,  and  the 
delivery  to  the  wife,  and  held  good. 
There  Is  no  weijjht  in  the  remark,  that  in 
thatcase  the  testator  delivered  thechattel 
In  the  first  instance  to  a  servant,  to  be  by 
hinidelivered  tothewife;  for  she  was  pres- 
ent, and  the  delivery  over  to  her  was 
made  in  a  short  time  and  in  the  testa- 
tor's presence.  There  can  be  no  reason 
why  a  delivery  to  the  wife  for  her  own 
use  should  be  good,  and  yet  not  good  if 
for  the  u.-e  of  another.  Cpon  the  whole 
then  this  donation  was  i)erfect ;  it  was 
made  in  the  testator's  last  illness,  and 
accompanied  witli  the  delivery  of  the 
bonils,  which  is  all  that  the  nature  of  the 
case  admits  of.  lam  therefore  of  opinion 
that  the  plaintiff's  rule  should  be  dis- 
charged. 

YEATES,  J.  There  seems  to  me  no 
ground  whatever  for  asserting  that  the 
present  verdict  was  contrar.v  to  evidence. 
It  rested  solely  on  the  credibilit.v  of  Theo- 
dosia  Craig,  the  widow  of  the  intestate,  of 
which  the  jurors  were  the  sole  judges. 
They  were  instructed  to  deliberate  calmly 
upon  her  testimony,  and  on  the  one  hand 
to  consider  the  danger  of  such  evideme. 
the  necessary  consequences  of  parol  evi- 
dence in  such  cases  in  general,  and  the  par- 
ticular i)repossesKions  of  the  witness  in 
this  case  towards  her  niece;  on  the  other 
hand,  the.v  were  told  to  recollect,  that 
she  testified  against  lier  own  interest  as 
to  one  half  of  the  demand,  that  the  im- 
pulse of  her  husband's  niin<l  was  favour- 
ably directed  towards  Mrs.  Tucker  his 
adopted  child  from  early  infanc.v,  which 
was  confirmed  by  the  unfinished  wills 
wherein  he  marks  her  husband  and  chil- 
dren as  objects  of  his  bounty,  that  the 
probability  of  her  story,  her  character 
and  manner  of  giving  testimony,  should 
also  he  taken  into  view,  and  a  temperate 
decision  formed  on  the  whole.  The  jurv 
have  atlirnicd  the  credibility  of  the  wit- 
ness by  their  verdict, with  wliich  I  am  per- 
fectly satisfied.  As  to  the  conduct  of 
Tucker  in  cancelling  the  bonds,  and  pre- 
vailing on  Steidien  Sicard  to  ai  knowledge 
satisfaction  on  the  record  of  the  mort- 
gage, after  he  had  assigned  it  over  to  the 
inttstiite,  the  jury  were  told  that  it  was 
highly  improper  and  reprehensible;  but  if 
the  children  independently  of  these  acts 
were  entitled  to  the  benefit  of  these  bonds, 
such  acts  would  not  defeat  their  interest 
therein. 

I  think  the  evidence  would  have  war- 
ranteil  the  jury  to  pronounce  the  gift  to 
the  defendant's  children  to  be  absolute  in 
the  first  instance,  and    to    take   effect   im- 


mediately, and-  therefore  irrevocable  ir» 
its  nature.  Nothing  was  said  or  hinted 
at,  of  its  being  a  conditional  gift  in  case 
of  his  death;  but  he  gave  the  bonds  to 
Tucker's  children  equally  to  be  divided  be- 
tween them;  and  such  might  be  a  good 
present  donatio  inter  vivos. 

Supposing  however  that  the  act  was 
doueiu  contemplation  of  death,  and  that 
it  could  only  take  effect  as  a  donatio 
causa  mortis,  I  think  it  ma.v  heestahlislied 
as  such.  It  is  agreed  on  all  hands,  that  in 
such  cases  the  gift  must  he  made  in  the 
party's  last  sickness,  and  lie  accompa- 
nied by  a  deliver.v  of  the  article  to  the 
donee,  or  some  one  in  his  behalf.  The  ob- 
jection made  in  this  instance  is,  that  the 
delivery  to  the  intestate's  wife  was  in- 
sufficient, because  it  still  remained  while 
in  her  possession  suliject  to  bis  control, 
and  therefore  revocable.  The  answer  is. 
that  a  small  matter  will  operate  as  a 
good  delivery;  such  as  a  mixed  pos- 
session, the  delivery  of  the  ke.v  of  the 
room  in  which  the  furniture  given  is,  to 
the  donee.  Smith  v.  Smith.  -  Stra,  U.j.'>. 
Besiiles,  it  is  fully  established,  that  a  wife 
is  capable  of  taking  a  donatio  causa  mor- 
tis from  her  husband,  being  in  nature  of  a 
leiiacv,  though  it  need  not  be  proved  as  a 
will.  Miller  v.  Miller,  8  P.  Wms.  :3r)6,  2  E(|. 
Ab.  356,  pi.  24;  Lawsou  v.  Lawson,  1  P. 
Wms.  441,2  Eq.  Ab.  575;  3  Wotid.  sect. 
514.  Now.  what  good  reason  can  be  as- 
signed, that  the  p<issession  of  the  article 
by  the  wife  is  sutfitient  to  validate  a  gift 
made  tiy  her  husband  in  his  last  illness  for 
her  exclusive  benefit,  and  yet  that  a  like 
possession  as  a.gent  for  another  shall  not 
be  good?  It  is  eqnall.v  subject  to  coun- 
termand and  revocation  in  both  instances. 
She  ma.y  be  attorney  to  deliver  seisin  to 
her  husband.  Co.  Litt.  52a.  Mortover 
we  have  the  authority  of  the  lord  chan- 
cellor for  asserting  that  a  donatio  causa 
mortis  taking  place  in  futuro,  is  revoca 
ble  as  a  will  duiing  the  life  of  the  party. 
Jones  V.  Selby,  Prec.  Ch.  303.  And  the 
reason  why  it  should  not  prevail  against 
creditors,  is  that  it  is  considered  as  a 
legacy.  Drur.v  v.  Smith.  1  P.  Wms.  40(i;. 
2  P.la.  Com.  514.  .According  to  the  lan- 
guage of  the  chancellor  in  tlie  last  case,  a 
man  certainli',  notwithstanding  his  will, 
has  a  power  to  give  away  any  part  of  his 
estate  in  his  lifetime.  He  might  in  his 
lifetime,  after  the  making  of  his  will,  givn 
away  any  part  of  his  estate  absolutely  ; 
and  by  the  same  reason  he  might  do  it 
conditionally.  The  comlitional  gift  pre- 
supposes the  power  of  revocation;  were 
it  not  so,  a  gift  bona  tide  in  the  lifetime 
of  the  party,  wonld  prevail  against  cred- 
itors after  his  death. 

Many  of  the  observations  of  the  jilain- 
tiff'.s  counsel  seem  to  nie  I'ather  re'erable- 
to  the  general  state  of  the  law.  as  now- 
settled,  than  as  ohjections  to  what  was 
done  either  b.y  the  court  or  jury  in  the 
cause  before  them.  1  feel  the  force  of  the 
remarks  made,  that  a  written  will  is  at- 
tended with  more  security  and  certain- 
t.v,  than  a  verbal  gift  of  goods  and  prop- 
erty in  the  nature  of  a  donatio  causa  mor- 
tis; and  that  fiauds  and  perjurie.'i  may 
arise  from  parol  testimony  in  the  latter 
case,  no   reasonable  mind  can  doubt.     To- 


WELLS  V.  TUCKER.  857 

thp  court  belongs    the    duty   of   deciJinB  [  will  fairly  warrant   the  conclnslnn,  that  a 
upon  the  coinpetcncy  of  evidence;  but  tlie  1  ncfariouH  Hchenie   hnH   been    nieilitated    to 
jury     ultimately    must    decide    upon    the    plunder    the   next    of  kin.  I  truHt  it  would 
credilvility    of    the     witnesses.       As    to    a    Hoon  lie  reiidired  iiborl  ivi'. 
widow's  oath  iu  cases  of    this    nature,  her        On  the  whole,  I  aui  of  opinion,  that  judjr- 
interestfl    will    in  senerul  prevent  her  from    ment  on  the  verdict  Mliould  be  rendered  for 
acting'  colliisively  to    the  prejudice  of  chil-    the  defendants, 
dren,  or  collateral  kin.smen.    Should  it  un- 
happily   prove    otherwise.  I  know    of   no  1      r5BA("Kl!:XI{II)GI.;,  .T.,  was   of   the  same 
other  safeguard    than  the  intelligence   of    ijpinion. 
lnde|)endent  jurors.    If  the  circumstances'     Judf^raent  for  detpodantB. 


WIIEELHOUSE  v.  PARU. 


859 


WHEELHOUSE  v.  PARR. 

(G  N.  E.  Rei).  787.  141  Mass.  593.) 

Supreme  .ludii'iiil   Court   of   Mnssachusetts. 
.Middlesex.    May  8,  ISSG. 

Tlii.s  wiiH  an  jiction  of  c<ir»tract  to  rf- 
cover  .1t;4IO.i;i;  for  a  lot  of  Iciitlici-  K.ild  todc- 
fciidunt.  lleiiriiift-  in  the  superior  court, 
■.vliieli  loiind  for  tin"  |)liiintiff,  and  tlie  de- 
fendant (ipiii'Jiled.  'I'lie  facts  up[)ear  in  the 
opinion. 

F.  \V.  Qua  and  F.  P  Marble,  for  ])lain- 
tlff.     Win.  II.  Anderson,  for  defcmlant. 

DEVENS,  .1.  When  kooOh  ordered  an<l 
contracted  for  are  not  directly  delivered 
to  the  purchaHer,  but  are  to  bi-  sent  to 
him  by  the  vendor,  and  the  vendor  ileliv- 
crH  them  to  the  carrier,  to  be  traMK|oite(l 
in  the  mode  agreed  on  by  the  partien,  or 
directed  by  the  purcha.ser;  or  when  no 
unieenient  in  made,  or  direction  ;;iven,  to 
be  tiansijorted  in  the  usual  mode;  or 
when  the  purchaser,  lieiuf;  informed  of  the 
mode  <.-f  trausportation,  assents  to  it;  <!r 
when  there  have  been  previous  Bales  of 
other  y;oo(ls  to  the  transportation  of 
which,  in  a  similjir  manner,  tlie  purchaser 
has  not  objected, — the  n(>oils.  when  ile- 
livered  to  tlie  carrier,  are  at  the  risk  of 
the  |)urchaser,  and  the  property  is  deemed 
to  be  vested  iu  him,  subject  to  the  ven- 
dor's risht  of  stoppaK*^  in  transitu.  This 
proposition  assumes  that  propei-  direc- 
tions and  information  are  siven  to  the 
carrier  .-is  to  forwarding  the  yoods.  Whit- 
iiiR  V.  Farrand,  1  Cot'n.  (IK;  (iuiniby  v. 
Carr,  7  Allen,  417;  Finn  v.  Clai-U,  10  Allen, 
■1!S4;  Finn  v.  ClarU,  I'J  .\llen,  .jJL';  Downer 
V.  Tiiompson,  '2  Hill,  1;J7;  Foster  v.  Itock- 
well,  104  Mass.  170;  Odell  v.  lioston  &  .\1. 
11.  K.,  1(1!)  Mass.  itO;  Wijrton  v.  Uowlev.  130 
Mass.  L'5-J. 

The  defendant  bad  made  a  purchase  cf 
leather  in  Novemljcr  previously  to  the  pur- 
chase of  that  the  price  of  which  is  in  con- 
troversy, under  a  direction  to  the  plaintiff 
to  "ship  to  care  of  D.  and  ('.  Mclver,  ship- 
piuK  mercliants,  Liverpool,  as  soon  as 
l)ossible, for  their  next  steamer  to  Hoston, 
direct."  This  shipment  was  ma<le  .-is  or- 
<lered,  and  on  December  l(>,  isst,  the  de- 
fendant sent  a  fui'ther  order  sayiuK:  "As 
regards  the  sliippinK  of  tho  leather  just 
received,  you  have  done  everytliin;;  satis- 
factory.    iSlup    this  order  in  lil<e  m;inner." 

The  directions  liy  which  the  plaintiff 
was  to  l)e  controlled  must  be  interiireted 
jit!  re()uirin}j:  him  to  forwar<l  tlie  floods 
to  D.  iV:  ('.  .\lclver,  to  lie  transported  by 
them  by  the  Cuiinrd  line,  of  which  tliey 
were  maniijiers  an<I  agents.  The  words 
"their  ne.\t  steamer"  couhl  not  have 
meant  any  steamer  which  would  accept 
freifi'ht  from  D.&C  Mclver.  Cases  may 
be  readily  imaKbied  where  these  words 
wouhl  be  of  tlic  liighest    importonce;  as  if 


the  defendant  had  nn  open  policy  of  In- 
Rurance  [irotectlnt;  his  Koods  wliicli"  mii;ht 
be  sent  by  the  Canard  line.  It  ii.itihf  also 
be  true  that  the  defendant  wi;iild  not 
deem  a  policy  of  insurance  neceHMar.v 
when  Kooils  were  sent  by  n  well-eslab- 
lished  passcniier  line,  where  greater  pre- 
I'lintions  miuht  [irobably  be  taken  for 
safety,  whicii  he  would  deem  necessary 
when  they  were  sent  by  a  purely  fieinht- 
injr  steamer.  The  K'Jods  were  "  actually 
forwarded  to  I).  &  C.  Mel  ver,  x%  itii  instruc- 
tions in  conformity  with  the  diiecliims  of 
the  defendant,  and,  had  the  matter  ended 
there,  HO  far  as  any  dii  citidiis  to  D.  &  C. 
Mel  ver  is  coiicei  lied,  the  plaint  ift  would  he 
entitled  to  treat  them  as  delivcied  tti  tli« 
defendant,  and  to  reiiuire  him  to  |ifiy  the 
purchase  money.  If.  on  the  other  hand, 
while  the  KDoils  were  yet  in  the  lianils  of 
the  carrier,  and  before  transportation  of 
them  hadcomnieiiced,  the  plaintiff  chaimed 
the  directions  niven  to  hini  tiy  the  defend- 
ant,  or  autliorized  the  carrier  to  tranH- 
tiort  them  in  a  different  mode  from  that 
directed  by  the  defendant,  and  loss  Iiiih 
thereby  occurred,  he  cannot  contend  that 
ttiey  were  d.'livered  to  the  defendant  by 
him.  liy  contiiiuiii;^  to  exercise  dominion 
over  them,  and  by  tiiviaii  a  new  direction, 
impliedly  wilhdrawinn-  t  he  directions  pre- 
viously };iven,  he  cannot  be  allowed  to 
assert  tlint  he  had  made  a  complete  deliv- 
ery by  his  orifiinal  act,  if  a  loss  has  oc- 
curred by  reason  of  that  which  he  lina 
HUbseiiuently  done  or  directed.  The 
clianj.-e  in  the  directionH  >riven  rela'eH 
back  to  and  qualities  the  oriuinal  deliv- 
ery 

The  iilaintiff,  in  answer  to  a  h'lter  from 
D.  &  0.  Mclver,  after  the  ^oods  had 
reached  them,  imiuirint;  wheli.er  ihs-y 
were  to  keep  the  (joods  "for  our  Hteanier, 
14tli  inst.,  or  ship  by  the  (iliiinom;aii, "  or- 
dered them  to  be  shippeil  by  the  steamer 
airivinu  out  first,  presuniablv  the  steamer 
which  I).  &  C.  .Mclver  believed  would  be 
the  first  to  arrive.  The  (>laiiiort;au  was 
not  a  steamer  of  any  line  of  \\  hicli  D.  &  C. 
Mclver  were  owners  or  a«enls,  and  in  no 
way  answfis  >he  description  of  "their 
steamer"  as  applied  to  I).  iV:  C.  Mclver. 
By  neulectinjr  to  limit  the  authority  of 
I).  iV  C.  Mclver  to  send  by  a  stejimer  which 
could  be  thus  described,  and  by  directing 
them  to  send  by  the  steair.er  which  «oulil 
first  aiiive,  the  plaintiff  had  failed  to 
comply  with  the  orders  of  the  defendant 
as  to  the  shipment  of  iroods;  and  if  cor- 
rect directions  had  oricinally  been  ;;iven, 
had  withdrawn  them,  and  substiluti'd 
others.  When,  therefore,  exercisinir  the 
authority  thus  «ivcn  by  the  plainliff.  D. 
iV  C.  .Mi'l  ver  send  by  the  (ilamorKiin,  aa 
beinfl.  ill  their  jinl^rnent,  the  steamer 
likely  to  arrive  lirst.  and  n  loss  occurs,  it 
should  not  be  boine  liy  the  defendant, 
whose  directions  have  not  been  followeil. 
Judgment  for  the  defendant. 


WnEELWRIGHT  v.  DEPEYSTER. 


861 


WHEELWRIGHT  v.  DEPEYSTER. 

(1  Johns.  471.) 

Supreme  Court  of  New  York.     Aug.  Term,  1806. 

This  was  an  action  of  trover,  for  a 
quantity  of  coffee.  Tlie  caune  was  tried 
at  tlie  New-Yorlv  Sittings,  tlie  l.Stli  day  of 
April,  ISOIj,  liefore  Mr.  .Iiistice  Spencer. 

At  tlie  ttiiil,  the  follovvinn  facts  ap- 
peared in  evidence.  Tlic  plaintiffs  were 
ownei-H  of  the  schooner  Pejijiy,  of  New- 
liuryport,  aiicl  of  a  greater  part  of  the  car- 
go, consisting  of  coffee  in  liogKlieadK,  liar- 
rels  and  hagu,  marked  S.  P.,  and  tliey  and 
the  master  were  joint  owiK-rs  of  another 
part  of  tlie  rargo,  lieing  (ivehags  of  coffee, 
without  iiiarkH.  The  scliooiier  had  sold 
her  outward  cargo  at  St.  Marks,  in  the 
island  of  St.  Doniingo,  in  Junnary,  IMH. 
and  took  in  lier  homeward  cargo,  consist- 
ing cliietly  of  coffee,  hclonging  to  the 
plaintiffs  and  otiiers.  On  her  voyage 
llo::".eward  to  tlie  United  States,  she  was 
captured,  the  l.'ith  of  February,  ls(M,  by 
a  French  privateer,  and  carried  into  St. 
Jago  de  Cuba,  where  she  arrived  the  1st 
of  March.  The  coffee  in  question  was  pur- 
chased, on  acciinni  of  the  defendants,  of 
a  Spaiiisli  merchant,  at  St.  .fago  de  Culia. 
atid  tlie  tliip  I'wo  Urothers,  in  which  it 
was  brouiiht  to  New-York,  went  along 
siile  of  the  I'eggy,  and  took  it  out  of  her. 
The  coffee  came  into  posse.'^sion  of  the  de- 
fendants, with  the  rest  of  tlie  cargo  of  the 
Two  r.rothers,  in  May,  isiM,  and  a  de- 
mand thereof  was  u'.iide  by  the  plaintiffs 
on  the  L".)tli 'of  May,  which  was  reiused  by 
the  defendants.  It  further  appeared,  that 
the  coffee  in  question  had  been  iiurchased 
by  the  |ilaintiffs  at  St.  Marks,  which  all 
the  time  was  in  [lossession  of  negroes,  un- 
der the  g(jvernment  of  Dessalines.  and  in 
«  state  of  revolt  from  the  French  govern- 
ment. Great  quantities  of  coffer  are  sold 
at  St.  Jago  de  Cnlia.  but  cliielly  [iri/.e 
coffee.  The  master  anil  crew  of  the  Tw  o 
Brothers,  when  they  took  the  coffee  on 
lioard,  had  ikj  knowledge  of  the  plalnlilfs' 
claim,  but  believed  it  to  have  been  the 
prcqierty  of  the  vendor  there. 

The  defendants  then  offered  in  evidence 
certain  proceedings  of  the  agency  of  the 
French  goveriinunt  at  St.  .lago  de  Cuba, 
and  the  sentence  of  condemnation  of  the 
I'eggy  anil  her  cargo  by  a  French  ndmi- 
rnltv  court  at  St.  Doniingo.  'I'liese  docii- 
ineiits  were  admitted  to  be  duly  authen- 
ticated, and  contained  the  wliole  of  the 
proci'edings.  The  facts  which  they  dis- 
closed Wfre,  that  after  a  proces  verbal 
and  examination  of  the  master  and  male, 
a  survey  of  the  I'egLry  was  ordered  by  the 
French  agency  of  .-it.  .lago  de  Cidia,  and 
it  being  reportcci  that  she  was  leaky,  and 
her  cargo  in  danger  of  being  spoiled,  it 
was  ordereil  to  be  sold  provisioiiall.v.  and 
the  proceeds  to  be  dejiosited.  to  abide  the 
liiidl  decision;  and  the  whide  cargo  was 
sold,  under  such  order,  to  a  Spanish  mer- 
chant there;  that,  afterwards,  on  the  Idlli 
of  April,  subsequent  to  the  sale  of  the 
coffee  to  the  defendants,  a  seiiteiue  of  con- 
demnation was  pronounced  oil  the  coffee 
at  .St.  Doniingo,  grounded  on  a  pnies 
verbal  drawn  up  nt  sen,  and  one  at  St. 
Jago  deCubu,  by  the  French  agent  there, 


I  at  the  time  the  Peggy  arrived  aa  a  prize, 
and  on  the  examination  of  the  masternnd 
I  mate.  The  cause  of  condeiiination  os- 
i  signed,  was  a  contravention  of  the  ar- 
I  rest  of  the  Frencli  goveriiinent.  as  to  the 
trade  and  interi-ourse  with  those  parts 
of  the  island  of  .St.  Domingo  that  were  in 
posses>ioii  of  the  negrocH.  This  evidence 
>  was  objecteil  to  by  the  plaintiffs,  ami  was 
overruled  by  the  juilge.  The  defendants 
then  offered  to  prove,  that  an  agency  of 
the  French  government  for  such  purposes 
was  estublisheil  at  St.  .Jago  de  Ciiba,  by 
permission  of  .Spain,  with  power  to  pro- 
ceed in  the  manner  stated  :  liut  the  judge 
overruled  the  testimony.  It  appeared  in 
evidence,  that,  at  that  time,  Spain  was 
not  at  war  with  any  power. 
j  The  judge  charged  the  jury,  that  the 
liroperty  of  the  coffee  remained  in  the 
plaintiffs,  and  had  not  been  clianged,  ei- 
ther by  the  purchase  made  l>y  the  defend- 
ants, nor  by  any  of  the  acts  and  prm-eed- 
iugs  of  the  captors,  or  the  French  triliu- 
nals;  that  in  ascertaining  the  damages, 
they  ought  to  take  into  calculation,  not 
only  the  coffee,  exclusively  owned  by  the 
plaint  iffs,  but  a  moiety  of  that  part  also 
owned  b.\  them  jointly  witli  the  master. 
The  jury  found  a  verdict  for  the  plaintiffH 
accordingly. 

The  defendants  moved  for  a  new  trial, 
on  the  following  ground.s.  1.  That  the 
piiqierly  in  tlie  coffee  liecnine  vested  <n 
tlie  defendantH  by  the  purchase;  L'.  That 
prize  goods  may  1ft  wfully  be  solil  liy  the 
c.'iptors  in  a  neutr.'il  country,  with  the 
con-ent  of  the  neutral  power;  .'!.  That  a 
neutral  power  may  lawfully  iicrmit  a  bel- 
ligerent to  bring  jirizes  into  its  jiorts.  and 
to  proc?ed  against  llieni  there  for  (.ffi-ntes 
against  the  laws  of  neutralit.v;  4.  Tliut  a 
prize  carried  into  a  neutral  port,  may  be 
condemned  while  lying  there,  by  the  tribn- 
nals  in  the  country  of  tlie  captor  ;  .">.  That 
prizes  may  be  sold  iirevious  to  a  condem- 
nation, and  a  coiiileninaticm  after  such 
sale,  by  a  court  of  competent  jurisdiction, 
will  devest  the  original  owner  of  his  prop- 
erty; G.  That  the  proceedings  and  con- 
demnation in  the  present  case  ought  to 
have  been  received  in  evidence,  as  they 
were  conclusive,  and  formed  a  complete 
defenc(>  in  the  cause;  7.  That  the  present 
suit  is  a  question  of  prize  or  no  prize,  anil 
belongs,  therefore,  exclusively  to  the  jirize 
courts;  S.  That  the  judge  misdirecteil  the 
jury,  as  to  the  assessment  of  damages  for 
the  moiety  of  tlie  coffee,  which  the  plain- 
tiffs owned  jointly  with  the  master. 

llniison  and  I).  A.  Ogtien.  for  |>Iain- 
tiffs.  S.  Jones  and  Hoffman,  for  defend- 
ants. 

KKNT,  Ch.  J.  delivered  the  opinion  of 
the  court.  This  cause  was  very  alily  ar- 
gued by  the  counsel,  and  the  severnl 
points  sutimil  ted.  have  received,  as  they 
merited,  the  attentive  consideration  of  the 
court. 

It  was  conteniled  that  a  lionn  fide  p\ir- 
chase  li.v  the  defendants  nt  St.  .lago,  for 
a  valuable  consideration,  and  without 
notice,  was  eiiuivalent  to  a  purchase  In 
market  overt  under  the  Fnglish  law,  and 
bound  the  property  against  th-  party 
who    had    right.     As    no    local    law   i>    al- 


862 


WHEELWRIGHT  v.  DEPETSTER. 


IcReil,   or   proved,   this  (luostioii    must  be' 
Knveriied  li.v  tbf  Kfiicral   piiiicii.les   of  the 
law  of  sales,  wliicli  we  areto  presume,  un- 
til the  contrary  lie  shown,  are  received  and 
adopted  in   all   commercial   countries,   at  j 
St.  .laao  as  well  as  at  New-York.     It  was  | 
the  maxim  of  the  civil  law  that  nemo  plus 
juris  in  alium  transferre  potest  quam  ipse 
habet;  and    this  plain  dictate  of  common 
sense  is  considered    by    Pothiei'i  and    Er- 
8kine2  as  a  fundamental  doctrine  of  the  con- 
tract of  .sale  in  Fi-ance  and  Scotland  ;  and  I 
there  is  good   reason    to  conclude,  that  it  | 
prevails  in  most  of  the  countrie.sin  Europe  \ 
which    linve  felt    the  inHueoce.  or  obeyed 
the     precepts,    of    the    civil    law.      Loid 
Kaimes.  in  his  Historical  Law  Tracts,  tit.  j 
"History   of    Properly,"    vindicates     this 
principle  in    the  transfer  of  chattels,  anC 
observes,  that    when    notions  of  property 
wereslijrht,  a  bona  tide  pnrchaseof  stolen 
goods,  gave  a  good  title  agiiinst  the  orig- 1 
inal   owner;  but   tliat   in  the  progress   of 
society,  property   ac(iuired   such  stability 
and  energy,  as  to  affect  the  subject  wher- 
ever founci,  and  to  exclude  even  an  honest  I 
purchaser,  when    the   title   of   his    vendor 
was   discovered    to   be   defective.     It  was! 
also   a   principle  in    the   English  common 
law,  that   a  sale   nut  of  market-overt   did 
not    change     the    property    against    the 
rightful  owner,  and  the  custom  of  the  city 
of  l<oiidon,  which   forms   an   e.xception  to 
the  general  rule,  has  always  been   regard- 
ed and   restricted   by  the  courts,  with  un- 
usual jealousy   and   vigilance.     (Comvns' 
Dig.    tit.   "Market,"'    E.)       The    effect     of 
such   a   i)uriha.se  made  here  is  not  stiictly 
before  us,  but   I  have   no  difficulty  in  say- 
ing that  I   know   of  no   usage  or  regula- 
tiim    within    this  state,  no  Saxon  institu 
tiou  of  markets-overt,  which   c<jutrol»   or 
inteiferes  with  the  application  of  the  com- 
mon   law. 2     The   ))urchuse  by   the  defend-, 
ants  dill  not.  therefore,  of  itself,  and  with- 
out  reference   to   the   title   of  the  vendor, 
give    tliem    an    indefeasible    right   to   the 
goods  in  (juestion.  ^ 

The  original  title  of  the  plaintiffs  to  the 
coffee  being  made  out  upon  the  trial,  and 
not  contested  here,  we  are  next  to  inquire, 
whether  the  power  and  proceedinns  of  the 
agent  of  the  French  government,  estab- 
lished at  St.  Jago,  were  competent  to 
authorize  a  sale  of  the  coffee.  This  agen- 
cy would  appear  to  have  been  a  prize  tri- 
bunal with  limited  and  provisional  pow- 
ers. There  was  a  jiroces  verbal  received, 
and  examinations  taken  by  its  authority,' 
and  a  survey,  sale  and  deposit  of  the  pro- 
ceeds ordered,  and  the  agency  is  stated  to 
have  been  established  for  such  purpo.ses. 
It  also  appears,  that  nt  the  time  of  the 
bringing  of  the  vessel  into  St.  Jago  as  a 
prize,  and  at  the  time  of  the  sale,  Spain 
was  a  neutral  power,  and  that  there  had 
not  been  any  judicial  condemnation  of  the 
cargo;  but  only  an  order  of  tliis  agency 
for  a  provisional  sale.  I  need  not  ques- 
tion a  provisional  sale  in  cases  of  necessi- 
ty.* under     the    orders    of    a    competent 

'Traite  du  contrat  de  vente,  part  1.  n.  7. 
'Institute  of  the  law  of  Scotland,  vol.  2.  4S1. 
'See  Hiern  v.  Mill,  13  Vesey,  jun.  121. 
<  See  Jennings  v.  Carson,  i  Cranch's  Rep.  3.  16. 


court;  but  I  deny  the  legality  of  the  power 
exercised  at  St.  .lago.  The  object  of  such 
tribunals  in  neutral  ports,  is  probably  to 
facilitate  the  sale,  and  increase  the  profits 
of  prizes;  but  the  object  is  not  to  l)e  at- 
tained by  such  means.  Ausis  talibus  istis 
non  jura  suljserviunt.  Neutral  ports  are 
not  intended  to  be  auxiliary  to  the  opera- 
tions of  the  parties  at  war,  and  the  law 
of  nations  has  very  wisel.v  ordained  that 
a  prize  court  of  a  belligerent  captor  can- 
not exercise  jurisdiction  in  a  neutral  coun- 
try. All  such  assumed  authorities  are 
unlawful,  and  their  acts  void.  This  was 
so  considered  by  the  English  court  of  ad- 
ruiralt.v  in  the  case  of  Flad  Oyen,  (1  C. 
Rob.  Adui.  135.)  and  by  the  court  of  K.  B. 
in  the  rase  of  Havelock  v.  Rockwood.  (S 
'I'erm  Rep.  26S.)  Lan.predi^laysdown  the 
same  rule  by  saying  that  the  judgment  if 
condemnation  ought  to  be  rendered  nut 
of  the  territory  of  the  neutral  power. 
The  proper  and  regular  court  tocundemn, 
says  the  highly  respected  and  authorita- 
tive Answer  to  the  Prussian  Memorial,  is 
the  court  of  that  state  to  which  the  cap- 
tor belongs;  and  that  questions  of  prize 
are,  and  can  be,  cognisable  only  in  such 
courts,  and,  consequently,  that  the  erect- 
ing ff)reigri  courts,  or  jurisdictions  el.se- 
where,  to  take  cognisance  thereof,  is  con- 
trary to  the  known  [iracticeof  all  nations. o 
The  Austrian  ordinance  of  neutrality  of 
the  7th  of  August,  IMj:^,  art.  17.  refers  to 
and  admits  as  valid,  condeiuna  tions  only 
by  the  judicial  authorities  of  the  countries 
of  the  captors;  and  the  supreme  court  of 
the  United  States,  in  the  case  of  (ilass  v. 
The  Sloop  Betsey,  (:J  Dallas,  6.)  declared^ 
that  no  foreign  power  could  of  right  in- 
stitute any  prize  court,  or  judicature  of 
any  kind,  within  the  United  .'States,  unless 
warranted  by  treat.v.  Fruiu  these  cases, 
from  the  reason  and  fitness  of  the  thing, 
and  from  the  manifest  inconvenience  and 
abuse  which  would  result  to  neutral 
rights,  as  well  as  to  those  of  the  powers 
at  war,  from  the  toleration  of  a  contrary 
practice,  1  am  satisfied,  that  the  rule- 
which  I  have  stated  is  correct  and  just, 
and  supported  by  the  soundest  authority. 
The  proceedings  of  the  French  agency  at 
St.  Jago  are.  then,  to  be  put  out  of  view, 
as  being  coram  non  judice.  and  we  are  to- 
consider  the  sale  as  made  without  any 
judicial  sanction. 

Such  a  naked  sale  by  a  captor  even  of 
property  professedly  belonging  to  an  en- 
emy, is  void  in  law.  and  incapable  of  de- 
vesting the  title  of  the  original  proprietor- 
It  is  requisite  that  a  sentence  of  condem- 
nation be  given  by  a  court  of  the  sover- 
eign of  the  captor,  before  a  title  to  the 
prize  can  lie  transferred. '^  This  excellent 
rule  has  been  long  known  and  established 
in    the    English    admiralt.v,  as  appears  by 


'De  Commer-cio  Neutrali,  &c.  sec.  H.  See  also 
Azum's  Maritime  Law  of  Europe,  vol.  2.  p.  2.54. 

'Findlay  v.  The  U'illiam,  1  Peters's  Adm.  Decis. 
27.  Jolly  V.  The  Neptune,  2  Peters's  Adm.  Decis. 
345,  346.  The  Kierliehett,  3  C.  Rob.  Adm.  Rep.  %. 
See  also,  Donaldson  v.  Thompson,  1  Campbell's  N. 
P.  Cases,  429. 

'  See  The  Nostra  de  Conceiscas,  5  C.  Rob.  Adm. 
Rep.  294.  The  Falcon,  6  C.  Rob.  Adm.  Rep.  194-19S. 
Case  of  The  Falcon,  1  Bee's  Adm.  Rep.  93.  Sas- 
portas  v.  Jennings,  1  Bay's  S.  C.  Rep.  478. 


WHEELWRIGHT  t.  DEPETSTER. 


863 


the  case  of  Therniolin  v.  SjukIr;  (Corth.  | 
423,  12  Moil.  14:i.)  anil  it  ni'enis  now  to  lie 
equally  ret'oKnifed  on  tlierontincnt  hh  part 
of  the  law  and  practice  of  nations.  Cl'lie 
case  of  the  Fhul  Oyen.  I  ('.  Koli.  liiri.and  of 
the  Henrick  &  .Maria,  4  C.  Holt.  4:!.  Heinec. 
(le  nav.  oh.  vet.  nier.  veh.  coinn).  hcc.  10. 
Azuni'H  Maritinie  Law,  vol.2,  p.  L'42. )  Our 
own  Kovernment,  alsn,  adopted  llie  rule 
during  the  revolutionary  war,  and  liounil 
itself  to  observe  it.  With  respect  to  the 
capture  of  neutral  vessels  under  the  |)re- 
teiice  of  a  violation  of  neutral  duty,  or 
of  contra venin)4  the  decrees  of  n  foreifjn 
government,  as  was  the  instance  in  the 
case  before  us,  the  necessity  of  a  pi'evious  ' 
trial  and  judKtnent  is  still  more  urjicnt 
and  palpable,  and  that  tiecessit.v  is  univer- 
sally admitted. 

We  are  next  led  to  examine  the  effect  of 
the  sentence  of  condemnation  at  St.  Do- 
mingo, subHe(iuent  to  the  sale  at  St.  .Iniro. 
This  sentence  was  intended  to  act  retro 
spectively,  and  to  cure  all  defects  in  the  I 
proceedinjis  before  the  French  agency,  but 
it  doe.s  not  appear,  and  from  the  case  we 
cannot  inteml,  that  the  proceeds  of  the 
sale  under  the  onler  at  St.  .Jago  were  de- ■ 
posited  in  any  other  place  than  St.  .lajto, 
and  the  admiralty  at  St.  Dcmiinso  pro- 
ceeded to  e.xercise  jurindirtion  over  tliecar- 
Ko,  and  to  adjudue  it  In wfnl  jiii/.c,  when 
the  subject  matter  of  their  sentence  was 
within  the  territory  of  a  neutral  power. 
An  important  and  delicate  question  then 
arises,  whether  we  arc  bound,  in  such 
cases,  by  the  decision  of  a  iirize  court.** 
Such  a  court  acts  in  rem  only,  and  it  can- 
not exercise  a  competent  or  efticient  au- 
thority unless  it  have  possession  of  the 
snl)jtCt.  I'ossessiou  must  be  essential  to 
its  jurisdiction.  It  is  the  duty  of  a  pi-ize 
court  to  K'ive  a  prompt  and  fair  hearing  to 
all  parties,  and  to  restore  instantly,  if  u()- 
on  a  summar.v  examination  tlieri'iloes  not 
appear  sulticient  K''ounil  to  proceed.  l!ut 
how  can  this  hearing  be  liacl,  and  this 
restoration  made  and  enf  )rrcd,  when  the 
suliject  matter  ill  controversy,  and  perhaps 
the  captors  and  captureil,  are  in  a  foreisn 
country?  The  admission  of  a  piactii'c  so 
incompatible  with  the  very  constitution 
of  a  prize  court  would  lead  to  the  great- 
e^t  confusion.  Snpi)ose  a  foreijrn  prize 
court  should  sustain  a  libel  against  a  ves- 
sel lyinff  within  one  of  our  own  harbours, 
and  shoulil  iiroceed  to  try,  condemn  and 
scllthesame;  would  any  person  hesitate 
to  say  that  such  a  jurisdiction  was  inad- 
missible? that  such  a  proceedinii  was 
coram  iion  judice?  To  sustain  jurisdic- 
tion in  such  a  case  woulil  be  the  liei;;lit  of 
iniusticeand  absurdity.  Theold  rule,  nu'ii- 
tioned  by  Hynkershock.  of  allovviuir  bel- 
ligerents to  carry  their  iITizes  into  neutral 
ports,  and  to  sell  them  there,  was  f,,unded 
on  the  doctrine  that  briuMiny:  the  pi-ize  in- 
fra jiraesidia  ilid  of  itself  work  a  transfer 
of  title.  liut  the  alteration  in  the  sense 
and  practiceof  nations, by  re<inirinna  judi- 
cial condemnation  before  a  clunme  of  ti'le 
can  take  [dace,  has  done  away  the  former 
Indnliience,  as  incompatible  with  tlie  new 
Improvement;     an     improvement     which 

"See  Rose  v.   Himelv.  4  Cranch's  Rep.  241-293. 
The  Soptiio,  0  C.  Rob.  Adm.  Rep.  13*. 


has  become  on  essential  and  most  salutary 
control  over  the  exercise  of  the  rigilt  of 
maritime  capture.  V'alin,  who  published 
his  Commentaries  in  ITtiO.  considered  It 
then  as  havitiu  become  thelaw  of  natiuns, 
that  prizes  could  not  becarried  intoa  neu- 
tral port,  unless  in  cases  of  necessity,  with- 
out a  violation  of  neutrality,  and  this 
prohibition  was  in  one  of  the  established 
ordinances  of  the  marine.  (f)rd.  de  la 
.Marine  des  Prises,  art.  14.  and  Valln, 
ibid.)  .VmouK  the  reRUlations  of  conjjfPSB 
upon  this  subject,  in  the  year  ]7>*1,  they 
uckuowledjrecl  their  obedience  to  the  law 
of  nations  accordinir  to  the  (general  usaues 
of  Knrope;  uad  the.v  undoubtedly  de- 
clured  their  understandiu);  <if  tliuse 
usuKes,  when,  in  the  same  year,  they  or- 
dered all  prizes  to  be  kept  safe  without 
sale,  until  they  had  been  passed  upon  by  a 
competent  court,  and  that  all  prizes  were 
to  lie  brou;:ht  for  a  judicial  deterniination 
before  a  prize  court  within  the  fniteil 
States,  or  within  the  dominion  <.(  an  all.v 
of  America.  (.Jourrals  of  ('ont:ress.  vol. 
7.  (iS.  ISl).  I  The  case  cited  from  March,  is 
interesting,  inasmuch  as  it  contains  so 
early  a  recognition  in  ICngland.  of  the 
modern  rule,  that  a  jirize  must  bebroURht 
infra  praesidin  of  the  power  by  whosesub- 
ject  it  was  taken,  or  the  property  would 
not  be  altered,  and  the  sale  would  be 
void. 

Sir  William  Scott,  in  the  case  of  the 
Henrick  &  .Maria,  (4  V.  I{oli.4.S.)  ailmitted, 
that  upon  principle,  and  accordiuLr  to  the 
better  opinion  and  practice,  the  prize  ounht 
to  be  brought  within  tlie  ports  of  the  sov- 
ereign of  the  captor,  or  within  those  of  an 
ally  of  such  sovereign,  and  that  [lossession 
founded  the  jurisdiction  ;  but  he  observed, 
that  the  Lnglish  admiralty  bad  goiic  too 
far  in  sanctioning  condeiMiutions  in  ICug- 
land,  of  prizes  abroad  in  a  neutral  port, 
to  permit  him  to  recall  the  vitious  prac- 
tice of  the  court  to  the  acknowledged 
principle.  We  are.  fortunately,  under  no 
such  embarrassntent  in  the  present  case; 
and  though  precedentshave  controlled  .Sir 
William  Scott. ego  tamen  Scevolaeassenti- 
or:")!!!!!  we  are  at  litierty  toconsider  the 
condemnation  at  St.  Domingo  us  void. for 
want  of  jurisdiction  in  tlie  court  over  the 
subject.'" 

It  has  been  strongly  urged,  that  this 
court  is  concliideil  by  the  sentence,  and 
has  no  authority  to  iniiuire  intt)  its  extent 
and  force,  because  the  question  of  prize, 
and  all  (luestions  incident  thereto,  belong 
to  the  exclusive  cognisance  of  the  ailini- 
ralty  courts.  It  Is  a  sullicient  answer  to 
all  this,  to  observe,  that  we  MFC  not  in(|ulr- 
ing  in'o  the  (luestlon  of  prize.  The  plain- 
tiffs prove  a  property  in  the  coffee,  and  the 
(lefendnnts  justify  under  a  capture,  con- 
demnation and  sale  abroad;  but  before 
the  defence  can  be  received.  It  must  .ip- 
pear  that  the  condemnation  was  by  a 
court  having  competent  jurisdiction  in 
the  ease,  and  so  far  we  have,  ol  necessity, 

•Cicero,  Epist.  ad  fam.  7.  23. 

">Soe  The  Sophie,  (!  C.  Rob.  .-Viim.  Rep.  MK>.  note. 

i  The  liccision  in  the  ca»i>  of  the  Hciirick  &  .Maria 

]  was  aflirnicd  in  the  hiith  court  of  appeals.    The 

foinot,  .T  f.   Rob.  Aiim.  Rep.  2V>.     The  Purissima 

I  Conception,  ti  C.  Kob.  Adiu.  Rop.  47.  S.  P. 


864 


■WHEELWBIGHT  v.  DEPEYSTEU. 


an  inciilcntal  jurisdiction.  It  wriul'3  be  a 
motiHtridis  doctrine,  to  hold  tliat  we  were 
I'OfK'liiilfil  l)y  every  nssumed  niitliority. 
\Vc  are  not  to  examine  into  tlie  validity  of 
tlie  capture,  l)iil  we  must  look  no  far  as 
to  see^vliether  the  condemnation  wasl)y  a 
tribunal  competent  to  pronounce  it  in  tlie 
Riven  case,  and  if  that  is  once  ascertained, 
a^ree  that  we  must  admit  the  <lel'eiice  to 
be  concliJsive.il  In  the  case  of  Oildy  v. 
Bovill,  (2  East,  -178.)  a  sii-nilar  (juestiou 
arose,  as  to  the  lef;ality  of  a  French  prize 
court  Hitting  in  Spain,  and  no  objection 
was  rai.sed  as  to  the  conijietency  of  the 
court  of  K.  li.  to  sustain  tlie  inquir.v: 
an<l  in  the  case  of  Havelocli  v.  Kocliwood, 
S  Term  H.  i'«8,  the  .same  court  did  not  hesi- 
tate to  declare,  that  the  Krench  court  of 
admiralty  at  nnrKen  was  illegal.  It  is 
the  practice  of  the  courts  of  law  in  cases 
of  insurance,  to  reject  the  decisions  of  for- 
eign prize  court.-i,  if  it  apjiear,  that  they 
proceeded  ui)on  local  ordinances,  or  on 
trroutids  contrary  to  the  law  of  nations. 
(  Mayne  v.  Walter,:!  Doug.  71),  and  Salucci  v 
.lolinson,  4  Doug.  UlM,  cited  in  P.'irk,  and 
admitted  as  valid  in  (ieyer  v.  Anuilar,  7 
Term  Hep.  (i'.Xi.  I  I  cunnotcn  tertain  a  doubt 
but  that  we  h.nve  authority  to  in()uirp, 
and  are  bonni'  to  say,  whether  theforeign 
court  was,  by  the  la  w  of  nations,  com|)e- 
tent  to  pass  the  sentence  in  question,  and 
having  determined  that  it  was  not,  that 
such  sentence  cannot  avail  lu  the  present 
case. 

Tlie  only  reniaiuiug  i)oint  in  the  case  Is, 
whether  damages  ought  to  have  been  as- 
sessed for  the   moiety  of   the  coffee  which 


"See  Rose  v.  Himely,  4  Cranch,  241.  S.  P. 


belonged  to  the  plaintiffs  conjointly  with 
the  master.  This  question  admits  of  no 
difficulty.  It  appears  to  be  settled  In  the 
booiis,  that  in  actions  of  trover  and  tres- 
pass, the  plaintiff  may  sue  separately  for 
his  aliquot  share  or  proportion  of  interest 
in  a  chattel,  and  that  the  defendant  may 
give  the  joint  interest  of  others  in  evi- 
dence, in  mitigation  of  damages,  but  that 
he  cannot  avail  himself  of  the  omission 
of  the  plaintiff,  t<5  unite  the  other  tenanta 
in  common  with  him  in  the  suit,  other- 
wise than  by  pleading  it  in  abateme:;t. 
He  cannot  take  advantage  of  it  at  the 
trial.  (Dockwray  v.  Dickenson,  Skinner, 
(i40.  Addison  v.  Overend,  G  Term  Hep.7(>(i. 
Sedgworth  v.  Overend,  7  Term  Uep.  2ji0. 
Blo.xani  V.  Hubbard,  .5  East,  420.  Scott 
V.  Godwin,  1  Bos.  &  Pull.  70-7.5.) 

The  hardship  of  this  case  upon  a  bona 
fide  purchaser  is  calculated,  upon  thetiist 
impression,  to  strike  the  imagination.  It 
v,as  contended  by  the  counsel,  that  such 
inirchasers  ought  to  have  been  favoured; 
I  but,  as  an  Englisl)  judge  has  somewiiHre 
j  oliserved,  arguments  upon  the  liardsliip 
1  of  a  case  are  only  quicksand.s  in  the  law, 
I  which,  if  admitted,  would  soon  choak  and 
destroy  all  estaSlished  principles.  A 
!  steady  adherence  to  rule  in  these  cases,  by 
'  reijniring  the  purchaser  of  captured  profi- 
!  erty  to  look  at  his  peril  to  the  title,  and 
j  to  derive  it  iinder  a  con)i)etent  sentence, 
will  tend  to  check  the  intemperate  avidity 
I  and  irregular  proceedings  of  belligerent 
I  captors. 

The  oijinion    of  the  court,    therefore,  is, 
that  the  defendants  take  nothing  by  tlieir 
motion. 
Judgment  for  the  plaintiffs. 


WlirrcOMB  V.  WHITNEY. 


867 


WHITCOMB  V.  WHITNEV. 
(24  Mich.  4S0.) 
Supreme  Court  of  Michigan.     April  16,  1873. 
Error  to  Wayne  circuit. 
D.  B.  &  H.  M.  Diiffielfi.  for  plaintiff  In  er- 
ror.    D.  (J.  Holbrook,  for  (lefeiidant  in  er- 
ror. 

COOLEY,  J.  The  main  facts  inthiscase 
are  undisputed.  On  tiie  Bixteentli  day  of 
March,  1871,  the  jiarties  made  a  contract 
evidenced  by  the  folio  wing  writinj;: 

"  Detroit,  March  IG,  1871.  Received  of  D. 
Whitney  Jr.  five  hundred  dollarH  on  ac- 
count for  all  the  upper  ()ualiti(>s  and  select 
common  and  cutting  up  or  line  coiiiiiion 
lumber  that  I  make  at  I{ock  Falls  in  town 
of  Sand  Beach,  Michiftan,  this  Keasoii,  at 
fair  price,  what  said  Whitney  can  afford 
to  pay;  the  lumber  is  to  be  delivered  on 
rail  of  vessel  when  lumlier  is  ready  toship, 
or  when  ve.ssel  is  ready  to  send  for  it. 
(Sinned)     "Hiram  Whitconib." 

The  defendant  from  time  to  time  ad- 
vanced moneys  upon  this  agreement,  and 
received  one  cnrno  of  lumber,  in  respect  to 
whicli  no  question  arises.  (Jn  September 
22,  1S71,  i)laiutiff  wrote  defendant  as  fol- 
lows: "I  have  all  my  lotrs  now  sawed: 
luml)er  ready  to  ship.  The  sooner  you 
send  a  vessel  the  better  J  would  like  it".  1 
think  there  will  be  seventy  M.  or  more. " 
On  the  receipt  of  this  letter  defendant  sent 
an  ins|)eetur  to  Rock  Falls,  who  arrive<l 
thei'e  about  the  fourth  of  October,  and  in- 
spected and  approved  of  about  si.\ly- 
four  M.  ftet  of  the  lumber,  actin;;  for  liuth 
parties  in  so  doing.  The  lumber  when 
inspected  was  at  plaintiff's  mill,  but  as 
fast  as  the  inspection  proceeded,  it  was 
haultd  on  the  dock,  some  fort.v  rods,  to 
be  ready  for  delivery  on  the  vessel  wlien 
one  should  be  sent  for  it.  The  ins[)ertion 
was  completed  on  the  sixth  of  October,  and 
defendant  was  notified  thereof  on  the 
eleventh  of  the  same  month.  Two  days 
before  the  time  last  mentioned,  however, 
the  lumber  was  destroyed  by  fire,  with- 
out any  fault,  neglect  or  carelessness  on 
the  part  of  the  plaintiff,  and  when  this 
fact  came  to  the  knowledge  of  defendant, 
lie  refused  to  pay  for  the  lumber,  and  this 
suit  is  brought  for  the  value.  The  decla- 
ratkm  contains  a  count  for  goods  sold 
and  ilelivered,  and  alsoa  speci.il  count  set- 
ting out  the  facts;  averring  plaintiff's 
readiness  and  willingness  to  ileliver  the 
lumber  on  the  rail  of  the  vessel  when  one 
should  be  sent  for  it,  but  that  before  de- 
fendant sent  any  vessel  to  take  it,  though 
he  had  aiuple  time  to  do  so,  and  to  load 
and  take  away  the  same,  the  lumber  was 
destroyeil  by  fire  without  the  fault,  neg- 
lect or  carelessness  of  plaintiff,  by  means 
whereof  the  defendant  became  liable  to 
pay  a  fair  price  tlierefor,  etc. 

It  does  not  seem  to  be  necessary  to  set 
forth  the  various  retjuests  tochnrge  which 
were  made  in  the  court  below,  nor  the 
charges  given  ;  the  ijuestion  in  this  court 
is  simply  this  whether,  under  the  tacts 
stated,  the  lumber  at  the  time  it  was  ac- 
cidentally destroyed  had  or  had  not  be- 
come the  property  of  the  defendant   so   as 


to    be    at    his  risk.    The  circuit  judue  In 
effect  held  that  it  had  not. 

In  support  of  the  ruling  of  the  circuit 
judge  we  are  referred  to  several  decisions, 
some  of  which  present  <|uestions  arising 
under  the  statute  of  frauds,  and  obvi- 
ously have  no  aiiplication  here.  Others 
were  decisions  upon  contracts  for  the 
manufacture  and  delivery  of  s[>ecilic  ar- 
ticles, under  whicli  no  title  could  pass  un- 
til the  specific  thing  was  completed  and 
delivered,  or  in  some  manner  identified 
and  set  apart  by  the  act  of  the  parties. 
Johnson  v.  Hunt,  11  Wend.,  l:i7,  [iresented 
the  (juestion  whether  lumber  which  was 
l)eing  got  ready  by  a  Iniilder  to  |)ut  into 
n  house  which  he  had  contracted  to  put 
up  for  another,  became  the  firoperty  of 
his  employer  before  it  was  actually  built 
into  the  hciuse;  and  the  court  held  that 
it  did  not.  This  was  clearly  correct,  as 
up  to  that  time  the  contract<ir  had  an  un- 
doulited  right  to  use  it  for  any  other  imr- 
rxjse  if  he  iileased.  ('(iiiifort  v.  Kiersted, 
26  Barb.,  471',  was  th(!  case  of  a  contract 
for  shingles  to  be  manufactured,  and 
which  by  the  terms  of  the  contract  were 
to  he  the  property  of  the  vendees,  at  eight- 
een shillings  a  thousand,  on  the  vendor'r. 
premises  as  fast  as  inanufnrtiircd :  he, 
however,  agreeing  to  deliver  them  at  the 
store  oi  the  vendees,  and  to  be  paid  tliree 
ilollars  a  thousand  at  that  [dace.  The 
contiact  fixed  the  amount  to  be  delivered 
at  10(1  .M..  but  with  the  privilege,  on  the 
part  of  the  vendees,  to  increase  It  to  l.")0 
.M.  The  court  held  that  the  shiiigles  did 
not  become  the  property  of  the  vendees 
until  in  some  way  designated  and  set 
apart  so  as  to  be  capable  of  being  identi- 
fied as  their  property.  The  sale  was  not 
of  all  the  party  might  make,  l)ut  only  of 
a  specified  quantity;  an<l  the  court  illus- 
trate their  view  of  thecontra'-t  b.v  say- 
ing, the  vendor  might  have  made  precisely 
such  a  contract  with  anotlier  person.  In 
which  case  the  shingles  "  would  have  be- 
come the  property  of  the  one  or  the  other 
of  the  parties  to  whom  he  had  agreed  to 
sell  them,  according  to  theirdesignation." 
This  case  differs  from  Comfort  v.  Kiersted 
in  two  important  particulars:  First,  the 
purchaser  here  was  to  have  all  the  lumber 
of  certain  kinds  widch  should  be  cut;  and. 
second,  the  lumber  coming  within  the 
terms  of  the  contract  was  particuhtrly 
identifieil  and  designatcl  by  the  act  of  in- 
spection. .Andrews  v.  Duiant.  11  N.  Y., 
:jr),  presented  the(iuestion  whether,  under 
a  contract  for  the  building  of  a  vessel  of 
certain  specitied  dimensions,  to  be  deliv- 
^  ercd  complete  bv  a  <Iay  named,  for  a  cer- 
tain price,  to  be  paid  as  tlie  work  i)ro- 
gressed.  an.v  property  in  the  vessel  passed 
liefore  the  vessel  was  completed;  anti  it 
was  held  it  did  not.  That  case  also  has 
very  little  liearing  upon  the  one  now  un- 
I  der  consideration. 

I  What  is  the  case  l-ere'.'  Tlie  contract  Is 
[for  the  purchase  of  all  the  lumber  of  ccr- 
i  tain  grades  that  plaintiff  shal'  mnnufac- 
I  fare  at  Rock  Fallsduring  theseason.  The 
plaintiff  could  not  have  s(dd  n  foot  of  it 
to  any  other  person  without  a  distinct 
viol.ition  of  his  contract  obligations. 
From  the  time  of  its  manufacture  nothing 


868 


WHITCOMB  c.  WHITNEY. 


would  neerl  to  be  done  to  determine  the 
riRtit  to  the  defendant  in  any  particular 
parcel,  but  to  have  it  properly  Hettled 
that  it  fell  within  one  of  the  grades  con- 
tracted for.  An  agent  duly  authorized 
bad  determined  that  as  to  all  the  lumber 
in  question,  and  had  done  what  amount- 
ed to  an  acceptance  of  it  on  the  part  of 
the  defendant.  It  had  then  been  set  ai)art 
and  stored  in  a  proper  place  for  the  de- 
fendant, and  was  subject  to  his  order. 
Nothing  remained  to  be  done  by  the  plain- 
tiff except  to  deliver  it  on  the  rail  of  the 
vessel;  and  that  he  could  not  do  until  the 
vessel  was  sent.  Everything  now  de- 
pended on  the  action  of  the  defendant, 
which  might  be  expedited  or  delayed  as 
should  suit  his  own  convenience.  Had 
this  been  a  contract  for  the  completion  of 
a  carriage  from  specified  materials,  to  be 
delivered  when  sent  for,  and  had  it  been 
fully  completed  and  accepteil,  so  that 
nothing  remained  to  be  done  except  to 
make  the  manual  delivery  when  it  should 
be  called  for,  the  setting  apart  of  the 
projierty  under  the  contract  could  not 
have  been  more  complete  and  unquestion- 
able than  it  was  here. 

Where  the  case  is  not  within  the  stat- 
ute of  frauds,  manual  delivery  of  the  ar- 
ticle sold  is  not  essential  to  the  passing  of 
the  title  unless  made  so  by  the  under- 
standing of  the  parties.  They  may  agree 
when  and  on  what  conditions  the  prop- 
erty in  the  subject  of  such  a  contract  shall 
pass  to  the  prospective  owner. — Denio,  ,1., 
in  Andrews  v.  Durant,  11  N.  Y.,  42.  Theii' 
intention  must  be  the  governing  consid- 
•ration  in  every  case. — Channell,  B.,  in  Tur- 
ley  V.  Bates,  2  H.  &  C,  211.  The  title  may 
pass  notwithstanding  the  price  is  yet  to 
be  determined.— Turley  v.  iSates,  supra; 
Valpy  V.  Gibson.  4  M.  G.  &  S.,  837.  In 
Olyphant  v.  Baker,  5  Denio,  .382,  it  is  said 
to  be  "a  general  rule  of  the  common  law, 
that  a  mere  contract  for  the  sale  of  goo.ls, 
where  nothing  remains  to  be  done  by  the 
seller  before  making  delivery,  transfers 
the  right  of  property,  although  the  price 
has  not  been  paid,  nor  the  thing  sold  de- 
livered to  the  purchaser."  And  of  the 
numerous  cases  in  which  the  expression  is 
used,  tliHt  if  anything  remains  to  be  done 
by  the  seller  the  title  does  not  pass,  Sel- 
den,  .1.,  in  Terry  v.  Wheeler,  25  N.  Y.,  ,')25, 
says  they  only  goto  thelength  of  showing, 
that  where  something  is  to  be  done  by  the 


seller  to  ascertain  the  identity,  quantity 
or  quality  of  the  thing  sold,  or  to  put  it 
in  the  condition  which  the  terms  of  the 
contract  require,  the  title  does  not  pass. 
And  he,  therefore,  holds  with  the  ap- 
proval of  the  whole  court,  that  an  agree- 
ment by  the  vendor  of  lumber  to  trans- 
port it  to  tlie  cars  and  deliver  it  free  of 
charge,  did  not  prevent  the  title  passing 
immediately  where  what  was  sold  was 
selected  and  designated. 

Suppose  thia  lumber  had  not  been  de- 
stroyed and  the  defendant's  vessel  had 
called  at  the  dock  for  it ;  could  the  plain- 
tiff have  refused  to  allow  him  to  take  the 
lumber  away,  and  maintained  replevin 
for  it  it  he  had  done  so?  If  the  title  had 
not  passed,  he  could;  if  it  bad,  he  could 
not.  If  it  was  still  his  property  and  at 
his  risk,  he  might  have  sold  and  conveye<l 
a  good  title  to  a  third  person  in  the  very 
presence  of  the  defendant  after  his  vessel 
had  arrived  to  take  it  away;  subjecting 
himself  only  to  a  liability  to  damages  on 
his  contract  for  a  failure  to  perform  it. 
But  we  think  if  he  had  attempted  this,  the 
defendant  would  not  have  hesitated  to 
say:  "This  property  is  mine;  it  has  been 
set  apart  specifically  for  me,  by  contract, 
by  inspection,  and  by  designation;  by 
every  act,  in  short,  which  the  circum- 
stances admitted  of  being  done;  the  ven- 
dor owes  a  service  to  me  in  putting  it  on 
the  rail  of  the  vessel,  which  he  can  either 
perform  (ir  be  liable  for  the  value  of ;  but 
if  he  performs  it,  it  will  be  in  respect  to 
property  previously  identified  as  mine, 
and  not  at  all  by  way  of  designation  or 
measurement.  Wlioever  buys  this  lumber 
of  him,  Ijuys  what  has  not  only  been  pre- 
viously bought  by  me,  but  what  has  been 
set  apart  for  me  and  placed  at  my  dis- 
posal by  the  most  unequivocal  acts  ;  and 
I  have  therefore  become  vested  with  a 
title  which  1  shall  maintain  and  enforce." 
This  is  vvliat  he  would  have  been  likely  to 
say  had  the  unfortunate  fire  not  occurred  ; 
and  this  the  law  would  have  justified  him 
in  saying.  It  follows  that  the  plaintiff  is 
justified  in  demanding  payment  from  him 
on  the  purchase. 

The  judgment  of  the  circuit  court  must 
be  revers>"d,  and  a  new  trial  ordered. 

CHRISTIANUY,  C.  J.,  and  CAMPBELL, 
J.,  concurred.  GRAVES,  J.,  did  not  sit  in 
this  case. 


WHITE  0.  SPETTIGUE. 


871 


WHITE  V.  SPETTIGUE. 

(13  Mees.  &  W.  603.; 

Courts  of  Exchequer.    Jan.  18,  1845. 

Trover  for  bookH;  to  which  the  defend- 
ant pleaded  not  guilty,  and  that  tlie 
plaintiff  wiiH  not  poHseHsed. 

At  the  trial  before  Holfe,  B.,  at  the  Mid- 
dlesex Hittitigs  In  thin  tonii,  it  appeared 
that  the  plaintiff,  who  was  a  Boheitor, 
had  iniHsed  from  da.v  to  day  several  vol- 
unieH  of  the  Statutes  at  Larpe,  which  he 
Buspected  to  have  t)een  stolen  by  a  young 
man  who  was  at  that  time  a  clerk  in  his 
office.  The  defendant,  who  was  a  book- 
seller carrying  on  business  in  London, 
heeanie  pocsessed  of  the  books  by  a  i)ona 
fide  purchase  of  them  on  different  days, 
from  a  young  man  who  brought  them  to 
his  shop  and  offered  them  for  sale.  The 
defendant  having  sold  the  books,  this  ac- 
tion was  brought  to  recover  the  value  of 
them.  On  the  above  facts  ap[iearing  in 
evidence,  it  was  objected  for  the  defend- 
ant, that,  as  the  plaintiff  had  done  noth- 
ing to  prosecutethe  person  who  had  stolen 
the  books,  he  could  not  maintain  the  ac- 
tion: Gimson  v.  W  oodtull.  2  Car.  &  P.  41; 
Peer  v.  Humphrey,  2  Ad.  &  Ell. 495;  4  Nev. 
&  M.  430.  The  learned  judge,  however, 
told  the  jury  that  there  was  evidence  to 
sliow  who  stole  the  books,  and  that  the 
property  in  the  goods,  being  originally  in 
the  plaintiff,  could  not  lie  taken  out  of  him 
by  any  act  oi  a  third  party  ;  and  he  direct- 
ed them  to  tind  for  the  plaintiff,  unless 
they  believed  the  defendant  received  the 
goods  km)wing  them  to  have  been  stolen, 
in  which  case  the  right  would  then  merge 
in  the  felony,  and  the  plaintiff  would  not 
be  entitled  to  recover.  The  jury  having 
found  for  the  plaintiff, 

Merewether  now  moved  for  a  new  trial, 
on  the  ground  of  misdirection.  The  case 
of  Gimson  v.  Woodlull  is  an  authority 
against  the  correctness  of  the  ruling  of  the 
learned  judge.  That  was  a  case  exactly 
similar  to  the  i)reseiit.  It  was  an  action 
of  trover  for  a  mare,  whiih  was  jiroved 
to  be  the  projierty  of  the  plaintiff,  and  to 
have  been  stolen  from  him,  and  itajipeared 
that  the  plaintiff  had  good  reason  to  be- 
lieve that  she  was  stolen  from  him  by  the 
person  from  whom  the  defendant  bought 
her.  Tlie  [ilaintiff  Iiad  taken  steps,  both 
befoi'e  a  magistrate  and  otherwise  with  a 
view  to  get  back  the  mare,  but  had  done 
nothing  towards  bringing  the  thief  to  jus- 
tice. Best,  t\  J.,  there  says,  "I  am  of 
opinion  that  the  plaintiff  has  done  noth- 
ing that  he  ought  to  have  done,  and 
I  doubt  if  a  stalenient  of  facts  before  a 
magistrate  would  be  enough.  But  hegoes 
to  get  l)ack  the  property  and  not  to  |)ros- 
ecute  the  felon.  If  I  were  to  hold  that 
this  action  could  be  maintaine<l,  under 
sucli  circumstances,  we  should  have  no 
morecriminal  prosecutions.  I  take  it  the 
law  is  this — .von  must  do  your  dut.vto  the 
public  before  you  seek  a  benefit  to  your- 
self, and  then  there  is  no  necessity  for  a 
civil  action.  The  decisions  go  not  only  to 
the  case  of  an  action  against  the  felon, 
but  as  to  actions  against  persons  wlio  de- 
rive their  title  under  him.     There  is  a  case 


in  the  Term  Reports  which  says  that  the 
property  is  in  d<jubt  till  after  pr<j8ecution. 
I  cannot  send  this  case  to  a  jury,  there  be- 
ing no  evidence  of  felony;  I  think  the  case 
should  have  gone  to  the  grand  jury."  In 
Peer  v.  Humphrey, 2  Ad.  &  Ell.  4'J.'j;  4  Nev. 
&  .\f.  4.30,  the  plaintiff  was  held  entitled  to 
recover  stolen  profierty,  but  there  he  had 
prosecuted  the  thief  to  conviction.  And 
Littledale,  .1..  says,  "Tlie  law  is.  that  no 
action  shall  be  brought,  under  particular 
circumstances,  until  the  owner  has  done 
his  duty  by  prosecuting.  Even  that  has 
been  done  here.  l!i  Gimson  v.  Woodfull 
the  pr<jpei-ty  must  have  been  changed  by 
a  sale  in  market  overt;  liesldes,  in  that 
case  the  party  had  done  nothing  towards 
bringing  the  thief  to  justice;  here  he  has 
actually  prosecuted  him  to  conviction." 
[POLLOCK,  C.  B.— The  case  of  Stone  v. 
Marsh,  6  B.  &  Cr.  ri'A,  is  a  direct  authority 
against  the  doctrine  you  are  contending 
for.  In  that  case  Lord  Tenterden  says, 
"There  is,  indeed,  anotlier  rule  of  the  law 
of  England,  viz.,  that  a  man  shall  not  be 
allowed  to  make  a  felony  the  foundation 
of  a  civil  action;  not  that  he  shall  not 
maintain  a  civil  action  to  recover  from  a 
third  and  innocent  person  that  which  has 
been  feloniou.-ily  taken  fi'om  him,  for  this 
he  may  do  if  there  has  not  been  a  sale  in 
niarket^overt,  but  that  heshall  not  sue  the 
TeTtTn  ;  anTT  1 1  may  be  admit  ted,  that  he 
shall  not  sue  others  together  with  the 
felon,  in  a  proceeding  to  whidi  the  felon 
is  a  necessary  party,  and  wherein  his 
claim  appears,  by  his  own  showing,  to  be 
founded  on  tlie  felonv  of  the  defendant: 
Gibson  V.  Minet,  1  H. "Black.  012.  This  is 
the  «  hole  extent  of  the  rule.  The  rule  Is 
founded  on  a  principle  of  public  policy, 
and  where  the  puldic  policy  ceases  to  o|>er- 
ate,  Ihe  rule  shall  cease  also.  This  point 
was  very  ably  shown  in  the  argument  on 
the  behalf  of  the  plaintiffs.  The  authori- 
ties were  quoted,  and  need  not  be  repeat- 
ed ;  audit  was  shown  that  the  familiar 
phrase'  the  action  is  merged  in  thefehiny,' 
is  not  at  all  times,  and  literall.v,  true. 
Now,  public  polic.v  requires  that  offeniler« 
against  the  law  shall  be  brought  to  jus- 
tice, and  for  that  reason  a  man  is  not  per- 
mitted to  a))siain  from  prosecuting  an 
offender,  by  receiving  back  stolen  prop- 
ert.v,  or  an  equivalent  or  composition  for 
a  felony,  without  suit,  and,  of  course,  can- 
not be  allowed  tomaintain  a  suit  for  such 
purpose.  But  it  is  not  contended,  that 
any  such  policyor  rule  is  applicable  to  the 
present  case;  the  offender  has  8uffere<l  the 
extreme  sentence  of  the  la  w  for  another 
offence  of  the  same  kind.  "  That  is  a  case 
precisely  in  point,  and  It  is  confirmed  by 
the  decision  of  the  house  of  lonls  in  the 
case  of  Marsh  v.  Keating.  1  Bing.  N.  C. 
1!)S;  1  Scott..'..]  Those  cases  are  distin- 
guishable from  the  present,  for  there  the 
felon  had  been  convicted  and  executed. 
Thejudgmeiit  of  Lord  Tenterden  caunot  be 
intcndeil  to  be  taken  to  the  full  extent  o' 
the  language  used,  for  the  jdaintiff  Is.  at  all 
events,  bounti  to  do  his  best  to  bring  the 
guilty  party  to  justice. 

POLLOCK.  C.  B  — I  am  of  opinion  that 
no  rule  ought  to  be  granted  in  this  case. 
The    court  of   king's   bench   correctly   ex- 


873 


"WHITE  0.  SPETTIGUE. 


plnineil  the  law  in  the  case  ol  Stone  v. 
Marsh,  and  the  rule  of  public  policy  which 
prevents  the  Jissertion  of  a  civil  right  in 
rcHpect  of  which  a  felony  has  been  comrait- 
tnd,  applies  onlv  to  proceedinRS  between 
the  plaintiff  and  the  felon  himself,  or,  at 
the  most,  the  felun  and  those  with  whom 
he  must  be  sued,  and  does  not  apply  to  a 
case  like  the  present,  where  the  action  is 
brought  against  a  third  party,  who  is  in- 
nocent of  the  fclonioustransaction.  More- 
over, the  defence  sought  to  be  raised  is  not 
admissible  under  these  pleas. 

PARKE,  B.— I  think  there  is  not  the 
least  foundation  for  a  rule  in  this  case.  In 
the  first  |)lace,  independently  of  the  point 
of  law,  there  are  neither  pleadings  to  war- 
rant the  defence,  nor  facts  to  support  it. 
The  only  pleas  on  thfi  record  are  not  guil- 
ty which  puts  in  issue  the  conversion, 
and  not  possessed,  which  puts  in  issue  tbe 
plaintiff's  title  at  the  time  of  conversion. 
Secondly,  the  books  in  question  in  the  ac- 
tion were  not  proved  to  have  been  the 
subject  of  a  felony,  nor,  assuming  a  felony 
to  have  been  committed,  did  it  at  all  ap- 
pear that  the  thief  was  amenable  to  jus- 
tice. Thirdly,  tlie  cases  which  have  been 
referred  to,  of  Stone  v.  Marsh  and  Marsh 
V.  Keating,  are  authorities,  that  the  obli- 
gation which  the  law  imposes  on  a  plain- 
tiff to  prosecute  the  party  who  has  stolen 
his  goods,  does  not  apply  where  tbe  ac- 
tion is  against  a  third  party  innocent  of  a 
felony.  Those  cases  are  subsequent  to 
that  of  Gimson  v.  Woodfull. 

ALDERSON.  B.— I  also  think  that  these 
pleas  do  not  warrant  the  proposed  de- 
fence, and  even  if  they  did,  I  tliinli  it  would 
be  no  defence  to  this  action.  Assuniing 
that,  under  the  plea  of  not  possessed,  a 
lien  maybe  given  in  evidence  (with  re- 
spect to  which  some  difficulty  might  be 
raised,)  still  if  you  admit  evidence  of  a 
lien,  you  cannot  exclude  evidence  to  show 
that  it  had  ceased  to  exist  at  the  time  of 
the  conversion.  .So  that,  supposing  the 
defendant  had  a  lien  on  these  books,  and 
he  should  prove  it  under  the  plea  of  not 
possessed,  the  plaintiff  would   be  entitled 


to  show  that  the  Hen  had  ceased  at  the 
time  he  converted  them.  The  utmost  e.^- 
tent  of  the  defence  set  up  In  this  case  is, 
that  the  defendant  was  entitled  to  the 
possession  of  the  books  until  the  plaintiff 
had  |)rosecuted  the  felon.  He  clearly  had 
no  right  to  sell  the  goods,  as  he  had  no 
property  in  them;  he  does  sell  the  goods, 
and  thereby  puts  an  end  to  the  lien,  if  any 
existed.  I  also  think  that  this  defence 
ought  to  be  specially  pleaded. 

ROLFE,  B. — I  am  of  the  same  opinion. 
I  cannot  agree  to  the  law  as, laid  down 
by  Best,  V.  .1.,  in  Gimson  v.  Woodfull, 
that  a  plaintiff  is  bound,  in  the  first  in- 
stance, to  do  his  duty  to  the  public  by 
prosecuting;  and  that  if  actions  like  tlie 
one  he  was  then  trying  could  be  main- 
tained, there  would  be  no  more  criminal 
prosecutions.  I  think  that  Is  too  general, 
and  1  cannot  accede  to  the  doctrine.  I 
think  the  true  principle  is.  that  where  a 
criminal,  anil  consequently  an  injurious 
act  towards  the  public,  has  beeti  commit- 
ted, which  is  also  a  civil  injury  to  a  party, 
that  party  shall  not  be  permitted  to  seek 
redress  for  the  civil  injury  to  the  prejudice 
of  public  justice,  and  to  waive  the  felony, 
and  go  for  the  conversion.  I  think  the 
law,  as  laid  down  in  that  case,  instead  of 
advancing  public  justice,  would  be  pro- 
ductive of  very  great  injustice.  It 
funounts  to  this,  that  another  person, 
who  has  got  possession  of  my  goods,  uf 
whicli  I  have  been  robbed,  may  keep  them 
until  I  prosecute  some  innocent  person 
whom  I  may  suspect  or  find  out  for  that 
I)urpose.  In  this  case  there  was  no  evi- 
dence that  the  plaintiff's  clerk  took  the 
goods,  and  probably  he  did  not,  though 
he  may  have  been  cognisant  of  the  rob- 
bery. I  also  agree,  that  the  defendant 
has  not  pleaded  so  as  to  admit  this  de- 
fence. With  respect  to  what  I  said  at  the 
trial,  that  if  the  defendant  had  been  the 
guilty  receiver  of  the  books,  he  would  be 
entitled  to  the  verdict,  I  must  retract 
that,  and  suspend  my  judgment  on  that 
point,  as  I  entertain  some  doubt  whether 
I  was  correct. 

Rule  refused. 


WIIITKIIOUSIC  V.  FKOST. 


K75 


WHITEIIOUSE  ct  al.  v.  FROST  et  aL 

(13  East,  614.) 

King's  Bench,  Trinity  Term.     July  6,  ISIO. 

In  trover  to  recover  tlie  vahie  of  Boine 
oil,  the  property  of  tlie  Imnkriipt,  which 
was  tried  at  IjancuHter,  in  Miircli  last,  a 
verdict  was  found  for  tlic  plaiiitiffH  for 
£390,  Huliject  to  the  opiiiiun  of  the  court 
on  tlie  following  caHo: — 

'I'he  plaintiffs  are  nssianeoH  of  John 
Townseiid,  late  a  merchant  at  Liverpool; 
the  two  Frosts  are  inerchants  and  part- 
ners in  Liverpool ;  and  the  other  defend- 
ants, Dutton  &  Bancroft,  are  also  mer- 
chants and  partners  in  th(!  same  town. 
On  the  7th  of  February,  1H09,  Townsend 
purchased  from  the  defendants,  .J.  &  L. 
Frost,  ten  tons  of  oil,  at  £:!!)  ijer  ton. 
amounting  to  £.'!'.l(),  for  which  Townsend 
was  to  Kive  his  accei)tance  payable  four 
months  after  date;  and  a  bill  of  parcels 
was  rendered  to  Townsenc;  by  the  Frosts, 
a  copy  of  wliich  is  as  follows  . — 

"Liverpool,  7th  February,  1809.  Mr. 
John  Townsend,  I'.onsht  of  J.  &  L.  Frost, 

Ten  tons  Greenland  whale  oil  in  Mr.  Stani- 

forth's  cisteriis„at  your  risk,  at  £30 £390 

Cr 

1809.     February  14.     By  acceptance £390 

"For  J.  &  L.  F.,  Wm.  Pemberton." 

The  said  ten  tons  of  oil  at  the  time  of 
his  purchase  vvere  part  of  fort.y  tons  of 
oil  lying  in  one  of  the  cisterns  in  the  oil- 
house  at  Liverpool,  the  key  of  which  cis- 
tern was  in  the  custody  of  the  other  de- 
fendants, Dutton  &,  Bancroft,  who  had  be- 
ft)re  that  time  purchased  from  J.  I{.  &  J 
Freme,  of  Liverpool,  merchants,  the  said 
forty  tons  of  oil  in  the  .^ame  cistern  ;  and 
upon  such  purchase  received  from  the 
Fremes  the  key  of  the  cistern.  Afterwards 
Dutton  &  Bancroft  sold  ten  of  the  forty 
tons  they  had  so  bought  (being  the  ten 
tons  in  ()uestion)  to  the  defendants,  the 
Frosts,  who  sold  the  same  in  the  manner 
before  stated  to  Townsend.  On  the  7th 
of  February,  the  day  on  which  Townsend 
bought  the  ten  tons  of  oil,  he  received 
from  the  defendants,  l'"iosts.  an  order  on 
Dutton  it  Bancroft,  who  held  the  key  of 
such  cistern,  they  having  other  inter- 
ests therein  asaforesaid,  to  deliver  to  liini. 
Townsend,  the  said  ten  tons  of  oil;  a 
copy  of  whi'-li  is  as  follows: — 

"  Messrs.  Dutton  &  Bancroft,  Please  to 
deliver  the  bearer,  Mr.  John  Townseinl, 
ten  tons  (Jreenland  whale  oil.  we  pur- 
chased from  you  Sth  November  last." 
(Signed)     "J.  &  L.  Frost." 

The  order  was  taken  to  Dutton  &  Ban- 
croft by  Townsend,  and  accepted  by  them 
upon  the  face  of  the  order  as  follows: 
"1,S1)9.  Accepted,  Mth  February.  Dutton 
&  Bancroft,"  Townsend  according  to  the 
terms  of  the  l)ill  of  parcels,  namely,  on 
the  14th  of  February,  ls(l9,  gave  to  the  de- 
fendants, I'^iosts,  his  acce|)tanco  for  the 
amount  of  the  oil,  payable  four  months 
after  date;  but  which  acce|itiince  has  not 
been  paid.  Townsend  never  demandeil 
the  oil  from  Dutton  &  Bancroft,  who  had 
the  custody  of  it.    The  oil  was  not  subject 


to  any  rent;  the  original  im|)orter  having 
paid  the  rent  for  twelve?  months,  and  sold 
it  rent  free  for  that  time,  which  was  not 
e.\((ired  at  Townsend's  liatikruptcy.  On 
the  '.'lid  of  May,  1S09,  about  three  months 
after  the  |)urcliaHe  of  the  ten  tons  of  oil, 
a  coBimission  of  bankrupt  issued  against 
Townsend.  under  which  he  was  duly  de- 
clared a  liankrupt,  anri  the  jilaintiffs  up- 
pointed  Ills  as.sigiiees.  .\t  the  time  of  the 
purchase,  and  also  at  tlie  time  of  Town- 
send's being  declared  a  bHid<rupt,  the  oil 
was  lying  in  the  cistern  mixed  with  other 
oil  in  the  same;  and  some  timeafterwards 
the  flefendants  refused  to  deliver  the  same 
to  the  plaintiffs,  notwithstanditig  a  de- 
mand was  made  for  the  same  by  the  as- 
signees, and  a  tender  of  any  chargr's  due 
in  respect  thereof.  When  the  whole  of 
the  oil  lying  In  any  o(  the  cisterns  in  the 
oil-house  is  sold  to  one  person,  the  pur- 
chaser receives  the  key  of  the  cistern  ,  but 
when  a  small  i)arcel  is  sold,  the  key  re- 
mains with  the  original  owner;  and  the 
purchaser  is  charged  in  proportion  to  the 
quantity  of  oil  sold,  with  rent  for  the 
same,  until  delivered  out  of  the  oil-house, 
unless  such  rent  be  i)aid  by  the  original 
importer,  as  was  the  fact  in  the  i)resent 
case.  If  the  plaintiffs  were  entitled  to  re- 
cover, the  verdict  was  to  stand;  if  not,  a 
nonsuit  was  to  be  entered. 

'i'here  was  a  similar  action  by  the  same 
plaintiffs  against  J.  H.  Freme  and  J. 
Freme,  Dutton,  and  Bancroft,  the  circum- 
stances of  which  were  in  substance  the 
same. 

Jas.  Clarke,  for  plaintiffs.  Scarlett, 
coutra. 

Lord  ELLENBORODGH,  C.  J.  This 
case  presents  a  difference  from  the  ordi- 
nary cases  which  have  occurred  where  the 
sale  has  been  of  chattels  in  their  nature 
several,  and  where  the  transfer  of  the 
property  from  the  vendor  by  means  of 
an  oriler  for  delivery  aeidressed  to  the 
wharfinger  or  other  person  in  whose 
keeping  they  were,  and  accepted  by  him, 
has  been  held  to  be  eciuivalent  to  an  actu- 
al delivery;  the  goods  l)eing  ot  the  time 
capable  of  being  delivered.  Here,  how- 
ever, there  is  this  distinguishing  circum- 
stance, that  the  ten  tons  of  oil  till  meas- 
ured off  from  the  rest  was  not  capable  of 
a  separate  delivery;  and  the  question  is, 
whether  that  be  a  distinction  in  substance 
or  in  semblanc(>  only.  The  whole  forty 
tons  were  at  one  time  the  proi)erty  of  Dut- 
ton &  Bancroft,  who  hail  the  key  of  the 
cistern  which  coutaiiie  I  them;  and  they 
sold  ten  tons  to  the  Frosts,  who  sold  the 
same  to  Townsend.  the  bankrupt,  and 
gave  him  at  the  same  time  an  order  on 
Dutton  A:  Bancroft  for  the  delivery  to  him 
of  the  ten  tons.  To  that  order  Dutton  & 
Bancroft  attorn,  as  I  may  say  ;  for  they 
accept  the  order,  by  wri'ing  upon  it  "Ac- 
cepted, 14th  of  February,  Iso'.i."  and  sign- 
ing their  namesto  it.  From  that  nion-.ent 
they  became  the  bailees  of  Townsend.  the 
vendee;  the  goods  had  arrived  at  their 
journey's  end.  anil  were  not  in  transitu; 
all  the  right  then  of  the  sellers  was  gone 
bv  the  transfer,  and  they  could  no  longer 
control    that   delivery  to  which    tliev  had 


876 


WHITEHOUSE  v.  FKOST. 


virtiinllv  acceflerl  by  means  of  their  order 
on  Dutton  &  liancroft  accepted  by  the  lat- 
ter. The  guostion  of  utoppins  in  transitu 
doea  not  arise,  taking-  the  Frosts  to  be 
tlie  original  Hollers,  as  between  tliem  and 
the  bankrupt;  the  oil  had  never  been  in 
the  hands  of  the  Frosts;  they  only  as- 
sifined  aright  to  it  in  the  hands  of  the 
common  bailees,  which  before  had  been 
assigned  to  them. 

GROSE,  J.  There  can  be  no  doubt  that 
at  the  time  of  Townsend's  bankruptcy  the 
ten  cons  of  oil  in  the  cistern  were  at  the 
risk  of  the  bankrupt.  All  the  delivery 
which  could  take  place  between  these  par- 
ties had  taken  place.  Dutton  &  Bancroft, 
who  had  the  custody  of  the  whole  in  their 
cistern,  had  accepted  the  order  of  the  sell- 
ers for  the  delivery  to  the  bankrupt,  and 
it  only  remained  for  Towusen<i,  together 
with  Dutton  &  Bancroft,  to  draw  off  the 
ten  tons  from  the  rest. 

LK  BL.4NC,  J.  Dutton  &  Bancroft  had 
sold  the  ten  tons  of  oil  in  question  (which 
was  part  of  a  larger  quantity,  the  whole 
of  which  was  under  their  lock  and  key)  to 
the  I'^rosts,  who  sold  the  same  to  Town- 
send;  and  there  is  no  claim  oo  tlie'part  of 
the  defendants.  Dutton  &  Bancroft,  to 
detain  the  oil  for  warehouse  rent.  The 
Frosts  never  had  any  other  possession  of 
the  oil  tlian  through  Dutton  &  Bancroft; 
but  tlieygave  to  Townsend  an  order  on 
these  latter  to  deliver  it  to  him  ;  and  after 
the  acceptance  of  that  order  Dutton  & 
Bancroft  held  it  for  his  use.  But  some- 
thing, it  is  said,  still  remained  to  be  done, 
namely,  the  measuring  off  of  the  ten  tons 
from  the  rest  of  the  oil.  Nothing,  howev- 
er, remained  to  be  done  in  order  to  com- 


plete the  sale.  The  objection  only  applies 
where  something  remains  to  be  done  as 
between  the  buyer  and  seller,  or  for  the 
purpose  of  ascertaining  eitlier  the  quan- 
tity or  the  price,  neither  of  which  re- 
mained to  be  done  in  this  case;  for  it  was 
admitted  by  the  persons  who  were  to 
make  the  delivery  to  Townsend,  that  the 
quantity  mentioned  in  the  order  was  in 
the  cistern  in  their  custody,  for  they  had 
before  sold  that  quantity  to  the  Frosts, 
of  whom  Townsend  purchased  it, and  had 
received  the  price.  Therefore,  though 
something  remained  to  be  done  as  be- 
tween the  vendee  and  the  persons  who  re- 
tained the  custody  of  the  oil,  before  the 
vendee  could  be  put  Into  separate  posses- 
sion of  the  part  sold,  yet  as  between  him 
and  his  vendors  nothing  remained  to  per- 
fect the  sale. 

BAYLEY,  J.  There  is  no  question  of 
transitus  here;  the  goods  were  at  their 
journey's  end.  When,  therefore,  Dutton 
&  Bancroft,  who  were  then  the  owners 
of  the  whole,  sold  ten  tons  of  the  oil  to 
the  Frosts,  those  ten  tons  became  the  prop- 
ery  of  the  Frosts;  and  when  they  sold 
the  same  to  Townsend,  and  gave  him  an 
order  upon  Dutton  &  Bancroft  for  the 
delivery  of  the  ten  tons  purchased  of 
them,  the  effect  of  that  order  was  to  di- 
rect Dutton  &  Bancroft  to  consider  as  the 
properly  of  Townsend  the  ten  tons  in 
their  possession,  which  before  was  C3nsid- 
ered  as  the  property  of  the  Frosts;  and 
by  the  acceptance  of  that  order  Dutton  & 
Bancroft  admitted  that  they  held  the  ten 
tons  for  Townsend,  as  his  property;  and 
he  had  a  right  to  go  and  take  it,  without 
the  interference  of  the  Frosts.  Postea  to 
the  plaintiffs. 


i 


WHITMARSH  o.  WALKEK. 


879 


WHITMARSH  v.  WALKER. 
(1  Melc-.  [Mass.J  313.) 

Supreme  Judicial  Court  of  Massachusetts. 
Sept.  Term,  1840. 

AssiinipHit  for  money  had  and  received, 
and  on  an  aKrecment  set  forth  with  sli^lit 
variations  in  different  counts,  but  in  all 
of  them  in  suDstance  as  follows,  viz., 
that  in  September,  I>iy8.  the  plaintiff  at 
the  defendant's  request  bouKliC  of  bini  a 
great  number  of  inulticaulis  raulberry- 
trees  at  the  rate  of  twenty-tive  cents  jter 
hill,  to  be  delivered  on  the  gronnd  where 
they  then  were  on  <leniaii<l  by  tlie  plain- 
tiff; that  the  plaintiff  then  paid  5510  in 
part  of  the  |)rice,  and  promised  to  pay  the 
residue  of  the  price  on  the  delivery  of  the 
trees;  and  that  in  consideration  thereof 
the  defendant  then  promised  to  deliver 
the  trees  to  the  plaintiff  on  demand.  A 
demand  by  tlie  plaintiff  was  alle;red,  and 
also  an  offer  of  payment  by  him,  and  a 
refusal  by  tlie  defendant  to  deliver. 

It  appeared  at  the  trial  before  Wilde,  J., 
that  the  agreement  declared  on  was 
made,  but  not  reduced  towritinn;  that 
the  price  of  the  trees  was  more  than  f'tO, 
but  that  the  plaintiff  paid  $10  as  alleged 
in  the  declaration;  and  that  the  trees, 
at  the  time  of  the  agreement,  were  grow- 
ing in  the  defendant's  close,  and  were 
nursery  tree.s  raised  to  be  sold  and  trans- 
planted. 

The  defendant  objected  that  the  agree- 
ment was  void  by  the  statute  of  frauds. 
The  judge  <jverruled  the  objection,  and 
a  verdict  was  found  for  the  plaintiff.  New 
trial  to  be  had  if  the  judge  erred. 

Huntington,  for  plaintiff.  Wells,  for  de- 
fendant. 


WILDK,  J.  This  action  is  founded  on  a 
parol  agreement,  whereby  the  defendant 
agreed  tosell  to  the  plaintiff  twothousand 
mulberry  trees  at  a  stipulated  ])rice;  the 
trees  at  the  time  of  the  agreement  being 
growing  in  the  close  of  the  defendant.  It 
was  proved  at  the  trial  that  the  plaintiff 
paid  the  defendant  in  hand  the  sum  oi  ten 
dollars  in  part  payment  of  the  price  tliere- 
of,  and  promised  to  pay  the  residue  of  the 
price  on  the  delivery  of  the  trees,  which 
the  defendant  promised  to  ddiver  on  de- 
mand, l)ut  which  promise  on  his  part  he 
afterwards  refused  to  perforin.  And  the 
defence  is  that  the  contract  was  for  the 
sale  of  an  interest  in  land,  and  therefore 
void  by  the  He  v.  Sts.  c.  74,  §  1. 

In  support  of  the  defence  it  has  been  ar- 
gued that  trees  growing  and  rooted  in  the 
soil  appertain  to  the  realty,  and  that  the 
contract  in  (juestion  was  for  the  sale  of 
trees  rooted  and  growing  in  tlie  soil  of 
the  defendant  at  the  time  of  the  sale.  On 
the  part  of  the  plaintiff  it  was  contended 
that  the  trees  contracted  for  were  raised 
for  sale  and  transplantation;  and  like 
fruit-trees,  shrubs  and  plants,  rooted  in 
tlie  soil  of  a  nursery  garden,  are  not  with- 
in the  general  rule,  but  are  to  be  consid- 
ered as  personal  chattels.  This  question 
was  discussed  and  considered  in  Miller  v. 
Baker  (1   Met.  27,)  and  we  do  not   deem  it 


necessary  to  reconsider  It  In  reference  to 
the  present  case.  We  do  not  consider  the 
agreement  set  forth  in  the  declaration  and 
proved  at  the  trial  as  a  contract  of  sale 
consummated  at  the  time  of  the  agree- 
ment; for  the  delivery  was  postponed  to 
a  future  time,  and  the  defendant  was  not 
bound  to  complete  the  contract  «)n  his 
part,  unless  the  plaintiff  should  be  ready 
and  willing  to  complete  the  payment  of 
the  stipulated  price.  Sainsbury  v. 
Matthews,  4  Mees.  &  Welsh.  :j47.  Inde- 
pendently of  the  statute  of  frauds,  and 
considering  the  agreement  as  valid  an^ 
binding,  no  property  in  the  trees  vested 
tliereby  in  the  plaintiff.  The  delivery  of 
them  and  the  payment  of  the  price  were  to 
be  simultaneous  acts.  The  plaintiff  can- 
not maintain  an  action  for  the  non-deliv- 
ery without  proving  that  he  offered  and 
was  ready  to  complete  the  |)ayuient  of  the 
price;  nor  could  the  defendant  maintain 
an  action  for  the  price  without  proving 
that  he  was  ready  nnd  offered  to  deliver 
the  trees.  According  to  the  true  construc- 
tion of  the  contract,  as  we  understand  it. 
tlie  defendant  undertook  to  sell  the  trees 
at  a  stipulated  price,  to  sever  them  fr<ini 
the  soil,  or  to  permit  the  plaintiff  to  sever 
them,  and  to  deliver  them  to  him  on  de. 
mand  ;  he  at  the  same  time  piiying  the  *le- 
fendaiit  the  residue  of  the  price.  Am]  it  is 
immaterial  whether  the  severance  was  to 
be  made  by  the  plaintiff  or  the  <lefendant. 
For  a  license  for  the  plaintiff  to  enter  and 
remove  the  trees  would  jinss  no  interest 
in  tlie  land,  and  would,  without  writing, 
be  valid,  notwithstanding  the  statute  of 
frauds. 

This  subject  was  fully  considered  in  the 
case  of  Tayler  v.  Waters.  7  Taunt.  .■!74; 
and  it  was  held  thiit  a  benelicini  license, 
to  l)e  exerci.sed  upon  land,  may  be  grant- 
ed without  deeil  and  without  writing;  and 
that  such  a  license,  granted  for  a  valuable 
consideration  and  acted  upon,  cannot  be 
countermanded.  The  sul)ject  has  also 
been  ably  und  elaDor.'itely  discussed  by 
Chief . I  usUee  Savage  in  the  case  of  .Mum- 
ford  V.  Whitney,  15  Wend.  ;1M),  in  which  all 
the  authorities  are  reviewed  ;  and  we  con- 
cur in  the  doctrine  as  therein  laid  down, 
namely,  that  a  permanent  interest  in  land 
can  be  transferred  onl.v  by  writing,  but 
that  a  license  to  enter  upon  the  land  of 
another  and  do  a  particularaet  or  a  series 
of  acts,  without  transferring  any  inter- 
est in  the  land,  is  valid,  though  not  in 
writing.  .Vnd  such  is  the  license  on  which 
the  plaintiff  relies  in  the  (iresent  case. 

Chancellor  Kent  in  his  Commentaries, 
vol.  ill.  p.  4.'>2,  .'Sd  Kd.,  veri'  justly  remarks 
that  "the  distinction  between  a  privilege 
or  easement  carrying  an  interest  In  the 
land,  and  recguiring  a  writing  within  the 
statute  of  frauds  to  support  it.  and  n 
license  which  nia.v  be  by  parol,  in  quite 
subtile,  and  it  becomes  ditlinilt  in  some  of 
the  cases  to  discern  a  substantial  differ- 
ence between  them."  lUit  no  such  dilli- 
culty  occurs  in  the  present  case.  The 
plaintiff  claims  no  right  to  enter  on  the 
defendant's  land  by  virtue  of  the  license. 
It  is  admitted  that  he  had  u  legal  right 
to  revoke  his  license.  But  if  he  exercised 
hi8  legal  right  in  violation  of  his  agree-, 
nient,  to  the   plaintiff's   prejudice,  he  Is  re- 


880 


WHITMARSH  v.  WALKER. 


sponsible  In  damages.  Wetliinkit  tliere  i  future  time,  he  was  hound  to  sever  them 
fore  clear  that,  RiviiiK  to  the  contract  the  from  the  soil  himself,  or  to  permit  the 
construction  already  stated,  the  plaintiff  plaintiff  to  do  it;  and  if  he  refused  to  corn- 
is  entitled  to  recover.  If  for  a -valual)le  ply  with  his  agreement,  he  is  responsible  in 
oonsideration  the  defendant  contracted  to  damages, 
sell  the  trees   and    to   deliver   them  at   a'     Judgment  on  the  verdict. 


WIELEU  V.  SCiriLIZZI. 


883 


WIELER  V.  8CHILIZZI. 

(17  C.  B.  619.) 

Court  of  Common  Pleas.    Jan.  15,  1856. 

This  was  nn  action  for  an  ollPtted 
breach  of  a  contract  for  the  sale  of  certain 
parcelH  of  linHced  dcHcribed  as  Calcutta 
linHced. 

The  first  count  of  thedeclnration  wtated, 
that,  by  aKrei'iueiit  between  the  plaintiff: 
and  tlie  defendant,  the  defendant  a^rreed 
to  Hell  to  the  plaintiff,  and  the  idaintiff 
agreed  to  buy  of  the  defendant,  certain 
parcels  of  jjotxis  by  certain  shipR,  that  is 
to  say,  aniotiKHt  other  Hhips,  by  the  ships 
Gloriosa,  Albatross,  and  Highlander,  at 
certain  prices,  and  l)y  the  said  aKreement 
the  defendant  warranted  the  said  Roods 
respectively  to  be  Calcutta  linseed;  and 
that,  althouRh  before  the  suit  the  idaintiff 
did  and  performed  all  matters  and  condi- 
tions, and  all  matters  and  conditions 
happened  and  were  performed,  and  all 
time  elapsed,  whieli  resjiectively  were  nec- 
essary to  be  done  or  performed  or  to 
elapse  in  order  to  entitle  the  plaintiff  to 
have  the  said  nKreenient  and  warranty 
performed  by  the  defendant  before  this 
suit;  and  altliou^h  the  defendant  causetl 
to  be  delivered  to  the  plaintiff  the  hai<l 
parcels  of  goods  by  the  said  three  ships 
above  speclHed:  .vet  the  defendant,  bnfore 
this  suit,  disregarded  his  prnmise,  and 
broke  his  said  warranty,  in  this,  that  the 
said  parcels  so  delivered,  to  wit,  parcels 
by  the  said  ships  Gloriosa,  Albatross, 
and  Highlander,  respectively,  were  not 
Calcutta  linseed,  and  were  respectively  in 
great  part  composed  of  substances  other 
than  and  inferior  in  value  to  (Calcutta  lin- 
seed, and  the  defendant  never  (lelivere<l 
to  the  plaintiff  parcels  of  Calcutta  linseed 
by  or  out  of  the  said  three  ships  nljove 
specified,  or  any  of  them,  in  pursuance  of 
his  said  contract  and  warranty;  and  b.v 
reason  of  the  premises  part  of  theBaid 
grxxls  so  delivered  were  wholly  valueless 
to  and  unsaleable  by  the  plaintiff,  and,  as 
to  and  in  respect  of  the  residue  thereof, 
the  plaintiff  was  unable  to  (d)tain  the 
same  prices  that  otherwise  he  would  have 
done,  and  was  obliged  to  and  did  before 
suit  sell  the  same  at  greatly  reduced 
prices. 

There  was  also  a  count  for  money  i)aid, 
money  received,  interest,  and  money  due 
on  accounts  stated. 

The  defendant  pleaded,  to  the  first 
count,  that  he  did  not  promise  or  war- 
rant as  alleged,  and  a  denial  of  the  breaches 
as  alleged;  and.  to  the  second  count, 
never  indebted,  payment,  aii'l  set-off. 

Tlie  cause  was  tried  liefore  .lervis,  C.  .7., 
at  the  sittings  in  London  after  last  term. 
The  facts  were  as  follows:— The  defend- 
ants, who  were  merchants  carrying  on 
business  at  Calcutta  and  in  Ijondon.  on 
the  ISth  of  Novomlier,  IS.54.  through  their 
broUers  entered  into  the  following  con- 
tract with  the  plaintiff: — 

"London,  ISth  November,  1S54.  Sold 
for  account  of  Messrs.  Schilizei  &  Co.,  to 
Mr.  W.  Wieler,  the  following  parcels  of 
Calcutta  linseed,  viz.. 

Per  Thalcstris,  about  210  tons,  bill  of  lading 
dated  July  last. 


Per  Mersapore,  about  100  tons,  bill  of  lading 
dated  July  last. 

Per  St.  Abbs,  about  18  tons,  bill  of  lading  dated 
July  last. 

all  at  65s.  6d.  per  quarter,  and 

Per  Gloriosa,  about  100  tons,  bill  of  lading  dated 
Sept.  last. 

Per  Albatross,  about  100  tons,  bill  of  ladingdated 
Sept.  last. 

Per  Highlander,  about  10  tons,  bill  of  lading  dated 
Sept.  last. 

all  at  tjfis.  per  quarter,  the  cost,  free  on 
board,  and  tlie  freight,  insurance,  and 
packnges  to  London  included,— tale  quale. 
The  amount  of  each  invoice  to  be  paid  in 
fourteen  flays  from  each  ship's  reporting, 
by  cash,  less  '2]i  per  cent,  discount,  in  ex- 
change forsliipping  docuraentsand  freight 
release.  Huyer  is  to  have  craft  alongside 
each  ship  as  soiin  as  each  parcel  of  seed  is 
really  to  discharge,  or  it  is  to  remain  at 
his  risk  and  c.Npense.  FJuyer  is  to  pa.v  to 
sellers  on  the  L'lilh  instant,  in  part  pay- 
ment of  tlie  ;ibove-nained  seed,  a  deposit 
of  tUHio,  which  is  to  be  a|iportioned  and 
deducted  from  each  invoice  as  follows, 
viz.,  us.  per  quarter  on  the  July  shipments, 
and  the  reniaimler  in  eciual  pro|)ortions 
on  the  September  shipments.  .Should 
buyer  fail  to  pay  for  the  whole  or  aiii' 
part  of  the  above-named  seed  on  arrival, 
as  stated,  sellers  are  to  beat  liberty  to 
sell  such  i)art,  without  further  notice,  at 
buyer's  risk ;  who  is  to  make  good  any 
loHs  that  iiia.v  accrue  in  conseijuence  of 
such  sale.  Interest  at  the  rate  of  5  per 
cent,  per  annum  to  be  allowed  on  the 
ileiiosit.  Should  any  of  the  above-named 
ships  be  lost,  the  de|)osit  on  such  parcels 
to  be  immediately  returned,  with  inter- 
est, as  stated. 
"Laing  vV  Campbell,  BroKers.  XIOOO  paid 
20 th  Nov.,  ls.-,4." 

On  the  arrival  of  the  seed,  the  buyer  ob- 
jectecl  to  the  (luality,  complaining  that 
it  contained  a  large  admixture  of  ra|)e 
and  mustard  seed,  and  therefore  was  not, 
in  accordance  with  the  terms  of  the  con- 
tract, "Calcutta  linseed." 

It  apiieared  from  the  evidence  that  no 
seed  comes  to  market  without  some  mix- 
ture, the  average  being  generally  about 
two  or  three  jiercent.;  but,  according  to 
the  evidence  of  the  idaintiff's  witnesses, 
the  linseed  in  question  contained  about 
fifteeii  per  cent,  of  tares,  rape,  and  mus- 
tard. The  defendants'  witnesses,  on  the 
other  hand,  stated,  that,  though  of  some- 
what inferior  (juality,  the  seed  did  answer 
the  description  in  the  contract. 

It  further  appeared,  however,  that  the 
idaintiff  bad  sold  it  as  and  for  "linseed  :" 
and  the  crushers  to  whom  it  was  sold 
proved  that  it  had  been  used  by  them  as 
such,  and  that  the  cake  was  sold  as  lin- 
seed-cake. 

On  the  part  of  the  defendant, it  was  sub- 
mitted, that  the  contract,  —  which  con- 
laine<I  no  warranty,  but  which  distinctly 
intimated  to  the  purchaser  that  he  was  to 
take  the  seed  as  It  was, —  was  satisfied  by 
the  delivery  of  that  which  was  known  in 
the  market  as.  and  which  in  point  of  fact 
was,  "Calcutta  linseed."  however  interior 
in  ((uality.  and  however  adulterated. 

For  tlie  jilaintiff,  it  was  Insisted,  that, 
tu  the  estent  of  the  mixture  of  foreign 


884 


WIELER  0.  SCIIILIZZI. 


seeJs,  tho  nrticle  delivered  was  not  lin-| 
aeed  at  all  within  the  meaning  of  the  con- 
tract. ^,     .  ., 

In  HubmittlMg  the  case  to  the  jury,  the 
lord  chief  justice  told  them,  that  the  ques- 
tion for  them  to  consider,  was,  whether 
the  plaintiff  got  what  he  bargained  for,— 
whether  there  was  such  an  admixture  of 
foreign  substances  in  it  as  to  alter  the 
distinctis-e  character  of  the  article,  and 
prevent  it  from  answering  the  description 
of  it  in  the  contract,— more,  in  truth,  than 
might  reasonably  he  expected. 

The  jury  returned  a  verilict  for  the  plain- 
tiff,—the 'amount  of  damages  being  by 
agreement  referred. 

Montague  Smith  now  moved  for  a  nevv 
trial,  on  the  ground  of  misdirection,  and 
that  the  vertlict  was  against  evidence.— 
The  defendant  was  guilty  of  no  breach  of 
his  contract,  if  he  su])plied  that  which  was 
known  and  usually  sold  in  tlie  market  as 
Calcutta  linseed.  There  was  no  warranty, 
and  no  fraud.  No  doubt  it  was  of  inferior 
(luality.  [CRESSWELL,  .1.— What  was 
inferior,— the  linseed,  properly  so  called? 
orthecargo?]  The  cargo.  [.JERVIS,  C. 
J.— I  left  it  to  the  jury,  in  substance,  to 
say  whether  the  article  was  so  mixed  as 
toloseits  distinctive  character,  or  whether 
it  was  such  as  to  answer  the  description 
in  the  market,  of  Calcutta  linseed. J  His 
lordship  went  on  to  say, — and  that  is  the 
direction  complained  of,— "was  it  (that  is, 
the  mixtureor  adulteration)  more  iu  truth 
than  might  reasonably  be  expected?" 
Now,  there  being  no  warranty,  if  this  was 
Calcutta  linseed  of  any  quality,  however 
inferior,  the  plaintiff  got  what  he  bar- 
gained for.  The  rule  is  well  expressed  by 
Lord  Ellenborough  in  Gardiner  v.  Gray,  4 
Camp.  144.  That  was  the  case  of  a  con- 
tract for  the  sale  of  twelve  iiags  of  waste- 
silk,  witliout  any  warranty  that  it  sliouM 
correspond  with  the  sample.  And  his 
lordshi|),  in  leaving  the  case  to  the  jury, 
said, — "I  think  the  plaintiff  cannot  re- 
cover on  the  count  alleaing  that  the  silk 
should  correspond  with  the  sample.  The 
written  contract  containing  no  such  stip- 
ulation, I  cannot  allow  it  to  be  superadd- 
ed by  i)arol  testimony.  This  was  not  a 
sale  by  sample.  The  sample  was  not  pro- 
duced as  a  warranty  that  the  bulk  should 
correspond  with  it,  but  to  enable  the  pur- 
chaser to  form  a  reasonable  judgment  of 
the  comnfljdity.  I  am  of  opinion,  how- 
ever, that,  under  such  circumstances,  the 
purchaser  has  a  right  to  expect  a  saleable 
article  answeiing  the  description  in  the 
contract.  Without  any  particular  war- 
ranty, this  is  an  implied  term  in  every  such 
contract.  Where  there  is  no  opportunity 
to  inspect  the  commodity,  the  maxim  of 
caveatomptor  doesnot  apply.  Hecannot 
without  a  warranty  iu.sist  that  it  shall  be 
of  any  particular  quality  or  fineness,  hut 
the  intention  of  both  parties  must  be 
taken  to  be,  that  it  shall  be  saleable  in  the 
market     under     the     denomination    men- 


tioned in  the  contract  between  them.  The 
purchaser  cannot  be  supposed  to  buy 
goods  to  lay  them  on  a  dunghill.  The 
question  then  is,  whether  the  commodity 
purchased  by  the  plaintiff  be  of  such  a 
quality  as  can  be  reasonably  brought  into 
the  market  to  be  sold  as  waste-silk.  The 
witnesses  describe  it  as  unfit  for  the  pur- 
poses of  waste-silk,  and  of  such  a  quality 
that  it  cannot  be  sold  under  that  denomi- 
nation." 

CRESS  WELL,  J.— I  am  utterly  unable 
to  discover  any  misdirection  in  this  case. 
It  is  suggested  that  my  lord  was  wrong 
in  telling  the  jury  that  the  question  for 
them  to  consider  was,  whether  the  linseed 
delivered  contained  a  greater  admixture 
of  foreign  substances  than  might  reason- 
ably be  expected;  and  that  he  should 
have  left  it  to  them  simply  to  say  whether 
or  not  it  answered  the  description  of  Cal- 
cutta linseed.  But  I  tliink  that  what  my 
lord  meant,  and  what  the  jury  must  have 
understood,  was,  that  they  were  to  say 
whether  tho  article  delivered  reasonably 
answered  the  description  of  Calcutta  lin- 
seed, that  is  linseed  with  a  reasonable 
amountof  adulteration  only.  My  lord  does 
not  express  himself  dissatisfied  with  the 
verdict:  and  I  see  no  reason  wh.y  we 
should  be  eo.  I  think  there  sliould  be  uo 
rule. 

CROWDER,  J.— I  also  think  there  was 
no  misdirection.  Looking  at  the  whole 
course  of  the  evidence,  it  appears  to  mo 
that  the  jury  were  rightly  told  to  consider 
whether  the  amount  of  adulteration  was 
greater  than  the  plaintiff  might  reasonably 
expect.  That  expressi(jn  was  not  used, 
as  Mr.  Smith  suggests,  as  a  qualification 
of  the  rule  of  law.  The  jury  in  effect  found 
that  the  article  delivered  did  not  reasona- 
bly answer  the  description  in  the  eon- 
tract:  and,  as  my  lord  chief  justice  is  not 
dissatisfied  with  the  verdict,  I  see  uo 
ground  for  quarreling  with  it. 

WILLES.  .J.— Thejury  have  in  substance 
found  that  the  linseed  in  question  was  so 
mixed  with  seeds  of  a  different  and  inferior 
description  as  to  have  lost  its  distinctive 
character  and  prevent  its  passing  in  the 
market  by  the  commercial  name  of  Cal- 
cutta linseed.  The  purchaser  had  a  right 
to  expect,  not  a  perfect  article,  but  an  ar- 
ticle which  would  be  saleable  in  the  market 
as  Calcutta  linseed.  If  he  got  an  article 
so  adulterated  as  not  reasonably  to  an- 
swer that  ('escription,  he  did  not  get 
what  he  bargained  for.  As, if  a  man  buys 
an  article  as  gold,  which  every  one  knows 
requires  a  certain  amount  of  alloy,  he  can- 
not be  said  to  get  gold,  if  he  gets  an  arti- 
cle so  depreciated  in  quality  as  to  consist 
ol  gidd  only  to  tl;e  extent  of  one  carat. 

JERVl.S,  C.  .1.,  concurred. 

Rule  refused. 


WILCOX  V.  MATTESON. 


887 


WILCOX  V.  MATTESON. 

(9  N.  W.  Rep.  814,  53  Wis.  23.) 

Supreme  Court  of  Wisconsin.    Sept.  27,  1881. 

Appeal  from  circuit  court,  J?fferBon 
county. 

Statement  by  TAYLOR.  .!.: 

TliiB  actii)n  was  brou^l't  to  recover  the 
amount  of  u  promlHHory  note  Kiven  liy 
the  defendant  to  the  deceaKed  Iiu.sl)aud  of 
the  plaintiff,  payal)le  to  his  order,  and  in- 
dorsed by  him  in  blanli.  The  answer  de- 
nies the  ownersliii)  of  tlie  note  by  the 
plaintiff.  The  question  of  ownership  was 
the  only  question  litigated  on  the  trial. 
The  plaintiff  claimed  upon  the  trial  that 
the  note  in  question  ha<l  been  Riven  to  her 
by  her  husband  in  his  life-time.  The  only 
evidence  tendinp;  to  prove  such  ownership 
was  the  followinR: 

Harriet  Kdj;ar,  a  witness  for  th('  plain- 
tiff, testified  that  sheatteuded  thedeceased 
liUHhand  in  liis  last  sickness,  and  that  on 
the  nisht  of  his  death,  and  about  three 
hours  before  liis  decease,  the  deceased 
"told  me  that  his  pocket-book  was  under 
the  feather  lied,  just  under  his  shoulders, 
and  for  me  to  take  it,  and  xive  it  to  his 
wife  when  sliecame;  that  there  was  some 
money  and  papers  in  it  that  would  lie  of 
value  to  her,  as  she  would  need  them. 
He  afterwards  died  at  1  o'clock  in  the 
morninK-  I  continued  there,  remainint; 
with  his  corpse  until  about  it  o'clock  in 
the  morning,  eifrht  liours  after  he  died, 
when  Mr.  Dyer  Williams  came  into  the 
room,  and  Mr.  Williams  turned  the  corpse 
over,  and  1  took  the  pocket-book  referred 
to  out  from  under  liis  shoulder  and  niivc 
it  to  Mr.  Williams,  telling  him  that  Mr. 
Wilcox  requested  me  to  give  the  pocket- 
book  to  his  wife;  and  Mr.  Williams  took 
the  pocket-book,  saying  he  would  give 
the  same  to  Mrs.  Wilcox  if  she  came,  and 
if  she  did  not  come  he  would  sen<l  it  to 
her.  From  the  time  of  his  death  until  Mr. 
Williams  came  1  had  exclusive  charge  of 
the  room  in  which  the  deceased  lay,  and 
was  not  out  of  the  room  five  minutes  dur- 
ing all  that  time. " 

Dyer  Williams,  a  witness  for  the  plain- 
tiff, testified  that  he  saw  Wilcox  about  six 
hours  after  he  died.  "When  1  arrived  in 
the  room  where  the  corpse  was.  .Mrs.  Har- 
riet Edgar,  his  nurse,  told  me  that  Mr. 
Wilcox  the  niglit  before  had  reijuested  her 
to  give  a  certain  iiocket-book  under  his 
shoulder  to  his  wife,  as  he  wanted  his  wife 
to  have  it,  and  that  he  wanted  the  nurse 
to  see  that  his  wife  got  it  herself.  I  then 
moved  the  corpse  so  that  the  nurse  could 
get  the  i)orket-book,  and  then  she  gave  it 
to  uie  an<l  requested  me  to  give  it  to  Mrs. 
Wilcox.  I  took  the  pocket-book  and  kept 
it  in  my  possession  until  Mrs.  Wilcox  ar- 
rived, and  then  gave  it  to  .Mrs.  Wilcox  be- 
tween S  and  9  o'clock  in  the  evening  after 
her  husband  died,  delivering  the  message 
the  nurse  had  communicated  to  me  con- 
cerning Its  disposition— that  it  was  a  gilt 
from  her  husband." 

The  plaintiff  herself  testified  that  tlie 
note  in  suit  was  in  the  pocket-book  when 
it  was  delivered  to  her.  and  that  it  was 
indorsed  by  the  deceased  in  his  own  hand- 


writing. She  also  testified  that  she  had 
been  duly  marrie(i  to  the  deceased,  and 
that  the  deceased  died  without  leaving 
any  children  or  other  lineal  descendants. 
U(ion  this  evi(h'nce  the  learned  circuit 
judge  directed  a  verdict  for  the  plaintiff. 
To  this  ruling  the  defendant  duly  except- 
ed, and  he  appeals  to  this  court  from  the 
judgment  rendered  upon  such  verdict. 

Harlow  Pease,  (or  apiiellant.  R.  B. 
Kirkland,  L  W.  ^  (i.  W.  Hird,  and  Wm. 
H.  Rogers,  for  resiiondent. 

TAYLOR,  J.,  (after  stating  the  facts  as 
above.) 

Upon  this  apiical  the  defendant  al- 
leges as  error  that  the  evidence  produced 
on  the  trial  shows  allirmatlvely  that  the 
note  upon  v.-hich  the  action  was  brought 
was  not  owned  l)y  the  [ilaintiff,  but  be- 
longed to  the  estate  of  her  deceased  hus- 
band, and  that  the  evidence  offered  for  the 
purpose  of  showing  a  gift  of  the  same  by 
the  deceased  to  the  plaintiff  dui'ing  his  life- 
time failed  to  show  such  gift.  We  are  con- 
strained to  agree  with  the  learned  counsel 
for  the  appellant  that  there  is  no  evidence 
in  the  case  which  shows  any  delivery  of 
the  p(jssession  of  the  pocket-book  anil  its 
contents  during  the  life  of  the  husbarit)  to 
the  plaintiff,  or  to  any  other  person,  for 
lieruse.  If  weconstrue  the  language  of  the 
deceased  most  favorably  for  the  plaititiff, 
and  that  his  recjucst  to  the  nurse  Ldgar 
was  that  she  should  inimedjately,  and 
before  his  death,  take  the  pocket-book  into 
her  possession  and  keep  it  for  and  deliver 
it  to  his  wife  when  she  came  as  her  prop- 
erty, still  the  evidence  fails  to  show  that 
the  possession  iiassed  from  the  d'-ceasid 
to  the  nurse  for  the  use  of  the  plain  tiff  until 
after  his  death.  The  nursestales  that  she 
ilid  nothing,  after  the  deceased  instructed 
her  what  do  with  the  pocket-book,  until 
several  hours  after  his  death.  Admitting 
that  the  nurse  might  have  received  the 
possession  of  the  property  for  the  plaintiff 
in  her  absence,  and  that  the  actual  receipt 
of  it  by  her, in  the  life  time  of  thedeceased, 
would  have  l)een  effectual  to  pass  the  title 
to  the  plaintiff,  the  fact  remains  that  she 
did  not  take  possession  during  his  life.  If 
this  can  be  upheld  as  a  gift,  then  it  must 
be  upheld  on  the  ground  that  the  jiosses- 
sion  of  the  property  passed  by  force  of  the 
wt)rds  of  the  deceased,  expressing  a  desire 
that  it  should  pass. 

We  know  of  no  case  where  a  gift  has 
l)een  upheld  when  no  act  has  been  done 
tending  to  change  the  possession  of  the 
property  which  Is  the  subject  of  the  gift 
from  the  donor  to  the  donee.  The  pocket- 
book  was  in  the  actual  jxissession  of  the 
donor  at  the  time  when  the  conversation 
l)etween  him  and  the  nurse  took  place, 
and  it  so  remained  until  his  death,  with- 
out any  change  in  its  location,  or  any  at- 
tempt to  change  the  same.  There  is  no 
doubt  of  the  intent  of  the  deceased  to  give 
the  property  to  his  wife.  I)ut  there  Is  an 
entire  absence  of  proof  of  any  act  done 
either  by  him  or  l>y  the  nurse,  standing 
in  the  place  of  ttie  wife,  which  tends  to 
show  any  surrender  of  the  possession  l)y 
the  husband,  or  any  taking  possession 
thereof  by  the  nurse,  during  the   life  of  the 


888 


"WILCOX  V.  MATTESON. 


liusbancl.  To  make  a  gift  perfect,  all  the 
CMScs  holil  that  the  possession  of  tlie  sub- 
ject of  the  Kift  must  paw  from  the  donor 
to  the  donee.  ThiH  lias  been  so  decided 
by  this  court,  and  it  is  therefore  unneces- 
sary to  reaort  to  the  decisiouB  of  other 
courts  to  sustain  our  rulinR  in  tliis  case. 
See  Wilson  v.  Carpenter,  17  Wis.  .512;  Resch 
V.  Senn,  28  Wis.  2ts(!.  In  the  first  casecited, 
this  court  adopted  the  rule  laid  down  by 
Chancellor  Kent  in  his  Commentaries,  as 
follows:  "Delivery  in  this,  as  in  every 
other  Ciise,  must  be  according  to  the 
nature  of  the  thins-  It  must  be  an  actual 
delivery,  so  far  as  the  subject  is  capable 
of  delivery.  It  must  be  secundum  sub- 
jectum  materiam,  and  be  the  true  and 
effectual  way  of  obtaining  the  command 
and  dominion  of  the  subject.  If  the  thing 
be  not  capable  of  actual  delivery,  there 
must  be  some  act  equivalent  to  it.  The 
donor  must  part  not  only  with  the  pos- 
session, but  with  the  dominion  of  the 
property.  If  the  thing  given  be  a  chose  in 
action,  the  law  requires  an  assignment  or 
someequivalent  instrument,  and  the  trans- 
fer must  be  actually  executed." 

In  the  case  at  bar  the  subject  of  the  pro- 
posed gift  was  of  such  a  character  that  an 
actual  delivery  could  have  been  made,  but 
none  was  made.  The  possession  remained 
in  fact  exactly  the  same  after  the  direction 
given  to  the  nurse  as  it  was  before,  and  so 
continued  until  the  death  of  the  donor. 


We  think  the  evidence  clearly  shows 
that  the  title  to  the  note  remained  in  the 
deceased  husband  at  the  time  of  his  death, 
and  that  the  learned  judge  erred  in  airect- 
ing  a  verdict  for  the  plaintiff. 

Upon  the  argument  in  this  court  the 
learned  counsel  for  the  respondent  claimed 
that  the  judgment  might  be  upheld  upon 
the  ground  that  the  widow  was  entitled 
to  the  note  under  the  provisions  of  subdi- 
vision 1,  §  3935,  Rev.  St.  1.S78,  which  pro- 
vides that,  upon  thedeath of  her  husband, 
the  widow  shall  be  allowed  certain  speci- 
fied property,  and,  in  addition  thereto, 
household  furniture  not  exceeding  in  value 
$2.50,  and  other  personal  property  not  ex- 
ceeding in  value  $200,  to  be  selected  by  her. 

The  difficulty  with  this  claim  is  that  the 
note  in  question  is  not  one  of  the  specific 
articles  of  property  which  the  statute  al- 
lows to  her,  and  there  is  no  evidence  that 
she  had  selected  the  note  as  a  part  of  the 
other  property,  not  exceeding  $200,  to 
which  she  is  entitled.  In  order  to  entitle 
the  plaintiff  to  hold  this  note  as  a  part  of 
the  property  of  her  husband,  which  is  given 
to  lier  by  the  section  of  the  statute  above 
quoted,  she  must  show  that  it  has  been 
selected  by  her.  In  the  absence  of  any 
proof  on  that  subject,  we  cannot  say  that 
the  plaintiff  acquired  any  title  to  it  under 
said  section.    See  Resch  v.  Senn,  supra. 

The  judgment  of  the  circuit  court  is  re- 
versed, and  a  new  trial  ordered. 


I 


WILLIAMS  V.  ALLEN. 


891 


WILLIAMS  V.  ALLEN  et  al. 

(10  Humph.  aiO.) 

Supreme  Court  of  Tennessee.    Dec.,  1849. 

ARSumpsit  in  tbecircuitcourt  of  Sumner. 
Plea  nDn-aHHumpsit.  There  was  a  ver- 
dict oiul  jii(l«ini'iit  for  tbe  defendant.  The 
plaintiff  appealed. 

J.  C.  Guild,  for  plaintiff.  Baldridce  and 
Head,  for  defendants. 

McKINNEY,  .1.  It  appears  from  the  bill 
of  exceptions  in  this  cbhc,  that  in  the  lat- 
ter part  of  the  year  1S47,  th(!  plaintiff 
burKained  witli  the  defendantH  for  thepur- 
chase  of  a  (luantlty  of  corn.  I'revious  to 
tlie  purchaHc,  the  corn  had  l)een  i)ut  in 
liens,  on  the  hank  of  I'.ledsoe's  treek  near 
ils  junotion  with  Ciimherland  river.  The 
barjjjain  was  for  all  the  eorn  in  the  pens 
at  the  price  of  $1  perbarrel ;  and  theijuan- 
tity,  not  beinfi  then  known,  wa.s  to  be  as- 
certained afterwards  Ijy  actual  measure- 
ment. It  does  not  appear  that  any  time 
was  fixed  either  foi-  the  measurement  of 
the  corn,  or  payment  of  the  price.  In  the 
month  of  December,  1n47,  before  the  corn 
was  measui'ed,  it  was  swept  off  by  a 
flood,  and  wholly  lost.  It  appears  from 
the  proof  that,  after  the  purchase,  the 
plaintiff  assumed  to  be  the  owner  of  suld 
corn,  and  torliade  nn  ollicer  to  levy  upon 
It  as  defendants'  proiierty,  statin};  that  It 
beliinsed  to  him,  that  he  hail  bought  It 
and  paid  part  of  tlie  price,  and  was  to  pay 
the  i)alance  on  his  return  from  market. 
On  the  other  hand,  there  is  proof  that 
when  the  flood  liesan  to  threaten  the  loss 
of  the  corn,  the  defendant,  Robert  .Allen, 
applied  to  some  of  the  witnesses  to  aid 
him  in  savins  it,  "and  called  it  his  corn  at 
the  time."  The  witness,  Mathews,  heard 
a  conversation  between  plaintiff  and  de- 
fendant, Robert  Allen,  some  time  after  the 
contract  for  the  pui'chaso  of  the  corn.  De- 
fendant "  wished  plaintiff  to  let  him  have 
a  horse  in  part  pay  for  the  corn  ;  plaintiff 
told  him  that  the  corn  was  not  measured 
and  tlelivered  to  him,  and  he  was  not 
bound  to  pay  until  this  was  done,  yet,  to 
accommodate  him,  he  would  let  him  have 
the  horse." 

It  further  appears  from  the  proof,  that 
between  the  time  of  the  ontract  ami  the 
loss  of  the  corn,  plaintiff  let  the  defend- 
ants have  a  horse,  some  pork,  and  a  small 
amount  of  money,  towards  the  payment 
of  the  price  of  stild  corn,  to  recover  back 
the  value  of  which,  the  present  suit  was 
brouKht. 

On  the  trial  in  tlieclrcuit court,  the  jud-ie 
instructed  the  jury.  "  that  if  the  pbiinliff 
boti'-rht  .I  parcel  of  corn  from  detendants, 
vvlilchwas    in    pens,  separate   and    distin- 


guishable from  all  other  corn,  at  the  price 
of  one  dollar  per  barrel,  and  there  was 
nothing  to  be  done  by  defendants  l)Ut  to 
measure  It  with  plaintiff,  and  deliver  it, 
the  property  in  the  corn  vested  Miicondi- 
tionully  in  the  plaintiff,  and  the  risk  was 
of  course  his." 

This  instruction,  we  think,  was  Incor- 
rect. The  general  principle  is  well  estab- 
lished, that  no  sale  is  complete,  ^.o  as  to 
vest  an  immediate  right  of  prorierty  in  the 
buyer,  so  long  as  anything  remains  to  be 
done,  as  between  the  buyer  and  scILt. 

Whereeoods  are  sold  by  number,  wwight, 
or  measure,  so  Idiik  as  the  specific  i|uaD- 
tity  or  measure  is  not  separated  and  iden- 
tilled,  the  sale  Is  not  completed,  and  the 
Koods  are  at  the  risk  of  the  seller.  .Story 
on  ("on.  §  son.  The  contract  may  be  com- 
plete and  bindlntr  in  other  respects,  but 
the  property  In  the  goods  remains  in  the 
vend(*r,  ami  they  are  at  his  risk,  if  any  act 
Is  to  be  done  by  him  before  delivery, either 
to  distinguish  the  goods,  or  ascertain  the 
price  thereof,     t'hitt.v  on  ("on.  '.il'i,  notel. 

Though  the  subject-matter  of  the  con- 
tract be  clearly  ascertained,  yet  if  the  price 
cannot  be  calculated  until  the  parties 
have  weighed  thegoods.  no  property  there- 
in passes  to  tlie  buyer  till  such  act  bedone. 
}Simnions  v.  Swift,:")  15arn.<Sc  ('.  N")7;  Cliitty 
on  Con.  :!77. 

Where  several  bales  of  skins  (stated  in 
the  ronti-nct  to  contain  five  dozen  in  each 
balel  were  sold  at  a  eertalsi  sum  per 
dozen;  hut  It  was  tin- duty  of  the  seller 
to  count  over  the  skins,  to  see  how  many 
each  bale  actually  contained,  and  hefore 
doing  so,  they  were  consumed  by  lire, 
Lorcl  Ellenborough  and  Sir  .lames  .Mans- 
field held,  that  no  action  couhl  be  main- 
tained against  the  purchaser  for  the  value 
of  the  skills,  and  that  the  loss  fell  entirely 
upon  the  seller.  Zagury  v.  Kurnell,  2 
Camp.  L'4-'.  See,  also,  Hanson  v.  .Meyer, 
fi  Hast,  CU:  Ku„'g  V.  MInett.  II  East,  210; 
Simmons  v.  .Swift,  ,">  Barn.  &  C.  S.")7. 

.\nd  a  mere  assumption  of  ownership, 
or  control  by  the  purchaser,  will  not  be 
sutliclent  evidence  of  a  delivery.  At  most. 
It  affords  merely  a  presumption  of  ileliv- 
ery.  which  ina.v  be  repelled  by  evidence 
showing  that  the  title  remained  in  the 
vendor. 

The  foregoing  authorities  which,  we 
think,  lay  down  the  law  correctly,  dearly 
show,  that  the  circuit  judge  erreil  in  di- 
recting the  jury,  that  the  property  in  the 
corn  in  nuestion  was  vested  In  the  (ilnin- 
tiff,  notwithstanding  the  (allure  of  the  ile- 
fendants  to  measure  ami  deliver  It.  On 
the  contrary,  by  p-ason  of  their  failure  to 
do  so.  th"  right  of  property  reninineil  un- 
altered, and  conseciueiitly  the  rl-k  and 
loss  were  exclusively  theirs. 

The  judgment  will  be  reverseil. 


WILLIAMS  V.  BACOX. 


893 


WILLIAMS  V.  BACOX  et  al. 

(2  Gray,  3.S7.) 

Siiprpme  Judicial  Court  of  Massacbuuctts. 
Oct.  Term,  1854. 

Action  of  contract.  The  declnrulion  iil- 
leiit-'d  thut  tlie  ilcfoiHlaatK  on  or  iilioiit  the 
iKtof  June,  IS.j;!,  contracted  to  sell  anil  ile- 
liver  to  the  phiintiff,  on  board  vcHnel  at 
Philadelpliia.  on  (h'niand,  5(MI  toMH  reil  i\n\\ 
egK  and  stove  coal  at  the  price  of  .f;!. 70 per 
ton;  and  .j(l()  tons  wliite  ash  coal  at  tlie 
following  prices,  namely,  lOO  tons  ivliite 
ash  esK  coal  at  $:\.i:>  per  ton,  100  tons 
white  ash  stove  coal  at  $:iA'i  per  ton,  and 
100  tons  white  ash  lump  coal  at  ^',',A>*)  per 
ton:  and  that  the  plaintiff  on  the  KUh  of 
August,  ls.'?:5,  demanded  said  coal  of  the 
defendants  at  Philadelphia,  hut  they  then 
and  ever  since  neglected  and  refused  to  de- 
liver the  same  or  any  part  thereof.  The 
<lefenilants  in  their  answer  ilenied  any 
purchase  of  coal  by  the  plaintiff  of  the 
defendants,  or  any  aRroement  i>f  the  de- 
fendants to  deliver  coal;  and  also  relied 
on  the  statute  of  frauds. 

At  the  trial  in  the  court  of  common 
pleas,  Male  Keniinfrton,  an  a{;ent  residing; 
at  Fall  Itiver,  of  the  defendaists,  who  lived 
in  Philadelphia.  beinK  calleil  as  a  witness 
for  the  plaintiff,  testified  as  follows:  On 
the  3J  of  June,  ]S.^:^,  he  made  a  verbal  con- 
tract with  the  plaintiff  at  Taunton  ;  and 
on  the  same  day,  at  Fall  Hiver,  his  clerk 
by  hi.s  order  entered  in  his  book  of  sales, 
on  a  i)af;e  headed  "Sales  on  account  of  F. 
Bacon  i&  Company,"  the  following  niem- 
ornndum  (  which  was  not  sijrned) :  "Sold 
to  B.  F.  Williams  of  Taunton  JlOO  tons  vkk 
and  stove  red  ash;  -JOO  tons  ejiK  ?;i.70;  :J00 
tons  stove  f;j.70.  Sold  :;00  tons  eprg  and 
stove  wliite  ash;  100  lump  $;!.(;0;  100  ejrjj; 
*a.45;  100  stove  $:^.4.">."  On  the  same  day 
he  wrote  a  letter  to  the  defendants  (  which 
was  producetl  upon  the  call  of  the  i)lain- 
tiff),  in  which  he  said:  "1  sold  this  niorn- 
infr  to  15.  F.  Williams  of  Taunton,  to  lie 
shijiped  to  Dii;lituii,  Mass.,  as  follows: 
«:!.70  for  H.  A.,  and  $:iA:>  for  W.  A.;  :i00 
tons  H.  A.  slove;  ^00  tons  IL  A.  e^K:  100 
tons  W.  A.  ejis:  10  tons  W.  A.  slove;  700 
tons,  all  to  be  delivered  before  .\u;;-iist  1st. 
You  may  ship  it  early  in  July,  or  before,  if 
it  suits"  better  to  do  so."  On  the  II tli  of 
July  he  received  a  letter  from  the  plaintiff, 
askin«:for"a  statement  of  our  coal  en- 
Katieineiit ;"  to  which  he  replied  by  the 
followiuir  letter: — 

"Fall  liiver,  11  July,  18.".3.  Benjamin  F. 
Williams,  Ksi).,  Tanntoii.  DearSir,— Your 
favor  of  this  date  is  before  us.  In  reply 
woulil  say  that  I  have  agreed  to  sell  you 
200  tons  red  ash  stovecoal  at  f  :i.70 ;  :I00  tons 
reil  ash  eji^  at  .If:!. TO;  100  tons  white  ash 
eijtr  at  !if;!.4.');  100  tons  white  ash  stove 
.f:!.J.".;  100  tons  white  ash  lump  :#:!.(iO.  The 
above  prices  to  be  charjied  deliverable  on 
board  vessel  at  Philadelphia.  The  coal 
is  now  ready  for  delivery,  and  you  will 
please  forward  vessels  as  soon  as  you 
please,  and  we  will  put  the  coal  on  boa'd. 
Our  people  will  use  all  exertion  to  pincure 
vessels  at  K<iins  rates  of  freight,  and  i  [ire- 
sume  they  will  succeed.  If  not,  you  must 
send  vessels  for  it.  Freights  are  now 
$1.50  and  $1.45  to  Fall  River.    Coal  is  now 


[worth  at  Philndeliihia  I.3.S.-),  and  I  think 
the  sooner  y<iu  Ket  your  coal  the  safer  for 
you.  Yours  truly.  Hale  BeminKton." 
I  On  ilie  Nth  of  .VMnnst  he  sinned  and  gave 
J  the  pliiintiff  an  order  addressed  to  the  de- 
fendants, and  thus  expressed  :  "  Please  de- 
liver the  hearer,  for  B  F\  Williams  of 
Taunton.  Mass.,  coal  as  he  may  order  it 
from  time  to  time,— red  ash,  egg  or  stove, 
as  he  may  choose,  .')00  tons;  white  ash,  200 
tons,  one-half  lump,  balance  egg  orstovp." 
And  there  was  evidence  that  the  plaintiff 
on  the  loth  of  August  presented  this  order 
to  the  defendants,  who  refused  to  accept  it. 
I'pon  this  evidence,  lioar.  J.,  ruled  that 
the  action  couhl  not  be  maintained,  and 
directed  a  verdict  for  the  defendants;  and 
the  plaintiff  illeged  e.Nceptions. 

E.  H.  Bennett,  for  plaintiff.    T.  D.  Eliot, 
for  defendants. 

MLIUJICK,  J.  The  presiding  judge 
ruled  at  the  trial  that  the  evidence  ad- 
duce<l  by  the  plaintiff  was  insutlicient  to 
enable  him  to  maintain  this  action,  an<l 
<Iirected  a  verdict,  which  was  thereupon 
returned,  for  the  defendants.  To  deter- 
mine whether  that  ruling  was  correct,  it 
is  necessary  to  keep  in  view  the  distinc- 
tion between  evidence  of  a  contract  and 
ev  iilence  of  a  compliance  with  the  provi- 
sions of  the  statute o'  frauds  in  relation  to 
it;  for  the  defendants  in  attempting  to 
sustain  the  iiiling  do  net  now  deny 
that  the  testimony  of  Hale  Beniinnton 
afforded  adei|uatc  proof  of  a  verbal  con- 
tract between  tin;  parties,  whereby  the 
plaintiff  agreeil  to  purchase  and  the  de- 
fendants to  sell  the  <)Uiintity  and  various 
kinds  of  coal  mentioned  'n  the  declara- 
tion;  but  they  insist  that  no  note  or 
niemoranduin  in  writing  was  ever  made 
(if  it  and  signed  by  themselves  or  by  any 
aulhorizeil  person  in  their  liehalf.  .And 
they  contend  that  the  let ter  of  Iteming- 
ton  of  the  lltli  of  .Inly,  IN.V!,  which  is  re- 
lied on  by  the  plaintiff  as  a  suflicient  cuiu- 
pliance  witii  the  pr<ivisions  of  the  statute 
to  give  validity  t<i  the  contract  and  make 
it  obligatory  upon  them,  cannot  proper- 
ly be  alloweil  to  have  that  effect;  first, 
because  it  was  no  part  of  the  res  gestre, 
and  constituted  no  part  of  the  negotia- 
tion between  the  parties,  and  is  only  a 
narrative  of  a  past  transaction  ;  a ncL  sec- 
ondly, because  it  does  not  purport  on  its 
face  to  be,  and  is  tmt  in  fact,  signed  by 
.  them  or  liy  any  duly  authorized  person  Id 
their  behalf. 

A  note  or  tnemoraiiduin  in  writing  of 
an  oral  cintract  is  essentially  different 
from  a  written  contract.  The  latter  su- 
persedes and  takes  the  place  of  all  preced- 
ing negotiati<ins,  and  is  conclusive  evi- 
dence of  the  stipulations  and  bargain  be- 
tween the  parties.  But  the  former  may 
be  made  at  any  time  after  the  parties 
hnveentereil  into  engiigenients  with  each 
other  bv  a  verbal  agreement.  Sieve- 
wright  v.  Archibald,  17  Ad.  &  Fl.  .N.  S. 
107.  114.  In  the  very  nature  of  sucli  trans- 
actions, the  mcmorairdum  must  be  jioste- 
''.  rior  in  point  of  time  to  the  contract  of 
[  which  it  is  the  reconl.  .\tid  It  has  accord- 
ingly often  been  determined  that  docu- 
ments and   letters,  though   they  were  all 


894 


WILLIAiMS  V.  BACON. 


written  subsequent  to  the  concluHion  of 
the  haraain,  iniiy  be  coupled  tosether,  if 
it  apiieur  that  they  nil  bad  relation  to  it, 
for  the  purpose  of  shewing  that  a  written 
niernorand.nn  of  it  was  duly  made  and 
siKned  liy  tlie  party  to  be  charged.  Allen 
V.  IJennet,  y  Taunt.  l(i!). 

The  evidence  produced  upon  the  trial  in 
the  present  case  had  a  direct  tendency  to 
prov.'  that  a  verbal  contract  for  the  sale 
of  coal,  as  is  alleged  in  the  declaration, 
was  made  by  and  between  the  parties  at 
Taunton,  on  the  .-id  of  June,  ISf).-!.  In  that 
negotiation  rieniinKton  acted  for  the  de- 
fendants. Me  was  their  duly  constituted 
afieiit,  and  was  authorized  in  that  ca- 
pacity to  sell  or  to  contract  for  the  sale 
of  coal  on  their  account.  Such  an  agency 
im|)lled  the  riglit  to  do  whatever  act  was 
necessary  to  make  the  engagements  he 
entered  inti),  in  the  exercise  of  the  power 
it  conferred  upon  him,  binding  and  obli- 
gatory upon  his  principals.  He  was  there- 
fore legall.v  competent;  and  it  was  lawful 
for  him,  after  having  verbally  agreed  with 
the  plaintiff  for  the  defendants  to  sell  him  j 
certain  ()uantities  of  coal  at  stipulated 
prices,  to  make  a  written  note  or  ineni- 
orandum  of  the  bargain,  and  sign  it  For 
them  and  in  their  behalf.  And  this  he 
might  lawfully  do  at  any  time  before  his 
authority  to  sell,  or  to  complete  a  con- 
Irnctof  sale,  was  revoked  or  annulled.  On 
the  nth  of  July  he  was  asked  by  the 
plaintiff  for  "a  statement  of  ourcoal  en- 
gagement;" to  which  re'iuest  he  replied 
in  his  letter  of  that  date.  A  jury  vvoulil 
l)e  well  warrnntel  in  inferring  from  the 
evidence  in  the  case — and  indeed  we  think 
they  could  justly  arrive  at  no  other  con- 
clusion—that  the  request  and  auswerboth 
referred  to  the  bargain  which  had  been 
previously  made  by  them  on  the  .3d  of 
June  at  Taunton.  If  so,  the  letter  was 
a  full  and  complete  memorandum  of  the 
bargain.  It  states  explicitly  the  agree- 
ment to  sell,  the  price,  (juantities,  and  de- 
scription of  the  different  kinds  of  coal 
sold,  the  place  where  it  was  to  be  deliv- 
ered, and  tha  time  when  the  payment  for 
it  was  to  t)e  made. 

This  memorandum  therefore,  contain- 
ing all  the  elements  of  a  complete  bargain, 
was  HUfficient  to  meet  the  requirements  of 
the  statute,  if  it  was  signed  in  behalf  of 
the  defendants  by  a  jjcrson  thereunto  duly 
authorized.  The  letter  was  signed  by 
Remington;  and  he  does  not  name  his 
principals,  or  express  in  terms  that  in  do- 
ing it  he  acts  as  their  agent.  But  inter- 
preting certain  expressions  contained  in 
it  in  the  light  afforded  by  a  knowledge 
of  the  situation  of  the  parties,  there  can 
be  no  doubt  that  he  wrote  it,  not  for  him- 
self, but  for  them.  There  is  nothing  in  the 
case  having  f.ny  tendency  to  shew  that  he 
ever  made  any  such  bargain  on  his  own 
account,  or  that  he  ever  had  any  such 
coal  of  his  own  to  sell;  but  it  is  certain 
that  he  did  make  such  a  bargain  with  the 
plaintiff  on  behalf  of  the  defendants,  and 
on  the  same  day  communicated  to  the  de- 
fendants the  fact  that  he  had  made  it 
They  resided  at  Philadelphia,  and  the  let- 
ter obviously  refers  to  them  when  the 
plaintiff  is  told  in  it  that  the  coal  is  readv 


for  delivery  at  that  place;  that  "you  will 
forward  vessels  as  soon  as  you  please, 
and  we  will  put  the  coal  on  board.  Our 
l)eople  will  use  all  exertions  to  procure  ves- 
sels at  going  rates  of  freight,  and  1  pre- 
sume they  will  succeed.  If  not,  you  must 
send  vessels  for  it."  These  allusions  could 
be  to  no  persons  but  the  defeiidant.s,  who 
were  thus  distinctly  pointed  out  as  the 
party  to  be  charged  with  the  obligation 
of  performing  the  contract  referred  to. 

The  signature  of  a  memoranduiu  which 
is  a  sufficient  conipliance  with  the  jirovi- 
sions  of  the  statute  may  be  made  by  an 
agent,  though  he  write  his  own  name  in- 
stead of  that  of  his  principal,  if  it  was  his 
intention  that  the  latter  should  be  bound 
bv  it.  2  Parsons  on  Con.  "iiM  ;  Trueman 
V.  Loder,  U  Ad.  &  El.  .W),  and  3  P.  &  Da  v. 
L'()7;  White  v.  Proctor,  4  Taunt.  L'09. 

There  is  a  very  slight  variance  in  the 
statement  of  the  terms  of  the  contract  be- 
tween the  letter  of  the  11th  of  July  and 
themenioranduni  which  Remington  caused 
to  be  made  of  it  on  his  book  at  Fall  Riv- 
er. And  in  his  letter  of  the  3d  of  June  to 
the  defendants,  he  omits  to  mention  the 
100  tons  of  lump  coal  which  was  embraced 
in  it.  But  in  reference  to  the  question 
arising  upon  the  bill  of  exceptions,  these 
variances  are  unimportant.  The  plain- 
tiff made  a  verbal  agreement  witli  the  de- 
fendants for  the  purchase  of  a  quantity 
of  coal.  He  subsequently  called  upon 
their  agent  for  "a  statement  of  our  coal 
engagement;"  and  the  letter  of  the  11th 
of  July  was  written  in  answer  to  this  ap- 
plication. It  was  sent  and  was  received 
as  an  authentic  statement  of  the  tsrms 
and  provisions  of  the  previous  bargain. 
It  is  immaterial  that  itdoes  not  in  all  par- 
ticulars correspond  with  the  items  con- 
tained in  the  communication  of  Reming- 
ton to  his  principals  under  date  of  the  3d 
of  June,  or  in  the  memorandum  which  he 
caused  to  be  placed  on  his  own  book  at 
Fall  River.  These  latter  are  of  impor- 
tance only  as  they  serve  to  corroliorato 
the  other  evidence  in  the  case  adduced  to 
prove  that  a  verbal  contract  had  in  fact 
been  previously  made  by  the  parties.  But 
having  been  written  without  the  knowl- 
edge of  the  plaintiff,  he  could  not  have  rec- 
ognized whnt  was  thus  stated  to  be  true, 
or  assented  to  it  as  correct,  and  of  course 
is  not  to  be  bound  by  it.  On  the  other 
hand,  it  cannot  he  doubted  that  in  |)re- 
paring  and  furnishing  to  the  purchaser, 
at  his  request,  a  written  note  of  the  verbal 
contract,  the  agent  who  made  it  would, 
with  a  vigilant  and  proper  regard  for  the 
rights  of  his  principals,  be  careful  to  fall 
into  no  error  in  bis  representations.  The 
letter  which  he  wrote  to  the  plaintiff  pro- 
fes.sed,  and  purported  upon  its  face,  to  re- 
cite with  precision  and  accuracy  the  terms 
of  the  contract,  and  was  received  and  ac- 
cepted, and  has  ever  since  been  relied  up- 
on, by  him  as  a  true  and  correct  state- 
ment of  it.  Both  iiarties  having  thus 
afiirmed  it  and  assented  to  its  correctness, 
the  memorandum  contained  in  the  letter 
of  the  11th  of  .July  must  be  considered  as 
conclusive  evidence  of  the  previous  verbal 
bargain. 

Exceptions  sustained. 


I 


WILLIAMS  V.  JACKMAN. 


897 


WIIJJAMS  et  al.  v.  JACKMAN  ot  al. 

(16  Gray,  514.) 

Supreme  Judicial  C!ourt  of  Massachusetts. 
Nov.,  1860. 

Action  of  tort  for  tlie  conversion  of  an 
unfini.shefl  Kliip.  .\iiH\v('r,  proijerty  in  (lie 
defendtints  as  aBsi;;iiceH  of  CiirriiT  & 
TownK(!i;(l,  insolvuut  ilcbtorH.  The  cast- 
waH  Hubinitted  to  the  jiidunient  of  the 
court,  with  power  to  draw  such  infer- 
ences aK  a  jury  nil;;ht,  upon  an  ayreed 
statement  of  facts,  in  Hul)stanco  aa  fol- 
lows:— 

On  the  14th  of  March,  185G,  an  agree- 
ment in  writing  was  made  between  the 
plaintiffs  and  Cnrrier  &  Townsend,  by 
which  the  lattei-  ufidertook  to  build,  firi- 
isl),  and  complete,  read.v  for  sea,  for  the 
plaintiffs,  a  first-idass  copper-fastened 
slii|),  to  1)6  ready  for  sea,  at  a  wharf  in 
Newlmryport,  by  the  1st  of  July,  IS'iU;  the 
plaintiffsagreed  to  i)ay  to  (furrier  &  Town- 
send,  "from  time  to  time,  while  said  ship 
is  building;.  Hie  sum  of  twenty  to  twenty- 
tive  tliousand  dollars,  and  when  the  ship 
m  ready  for  sea,  sut'li  amount  as  shall 
make  ultoKether  the  sum  of  fifty-ciHlit 
thousand  dollars;"  and  it  was  ajirei'd 
that  "no  interest  is  to  be  charged  on  the 
amounts  ad  vanced  "  to  Currier  &  Town- 
send  by  the  plaintiffs. 

On  the  :22d  of  March,  the  plaintiffs  fur- 
ther agreed  in  writing  to  pay  Currier  & 
Townsend,  "till  the  amount  of  twenty  to 
twenty-five  thousand  dollars  is  paid  as 
per  contract,  one  tliousand  dollars  every 
■week,  Saturday."' 

The  making  of  the  first  aitreement  was 
preceded  by  verbal  negotiations,  in  the 
course  of  wliicli  the  plaintiffs  iiiforineil 
("urricr  &  Townsend  that  Captain  Israel 
P.  Williams  would  su|)erintend  in  their  be- 
half the  building  of  the  ship,  and  Currier 
&  Townsend  gave  their  assent  to  this 
arrangement.  Captain  Williams  had  pre- 
viously superintended  the  bnilding  of  an- 
other ship  by  Currier  &  Townsend  for  the 
plaintiffs.  On  the  l.-)th  of  .March,  the 
plaintiffs  addressed  a  note  to  Cunier  & 
Townsend,  stating  tluit  they  had  ea)- 
ploj-ed  Captain  Williams  to  superintend 
tlie  building  of  the  ship,  and  requesting 
that  he  might  be  considered  tiieir  agent  in 
all  things  i)ertaiinng  to  such  superintend- 
ence. This  note  was  delivered  on  the 
same  day  by  Captain  Williams  to  Currier 
&  Townsend  at  their  place  of  business. 
.■\bout  the  same  time,  Currier  &  'I'own- 
send  began  to  build  the  ship,  and  carried 
on  the  work  till  the  !)th  of  the  following 
.Ma.v.  Every  day  during  this  time.  Cap- 
tain Williams  was  at  tin?  sliip-ynril  where 
the  ship  was  huildinir,  giving  directions, 
-  making  suggestions,  talking  with  Currier 
&  Townsend  about  the  work,  and  devot- 
ing Ills  whole  time  to  superintending  it; 
and  the  jilaintiffs  paid  him  his  expenses, 
and  three  dollars  a  day  for  his  services. 

The  jilaintiffs  paid  tliree  thousand  ilol- 
lars  to  (furrier  &  Townsend  on  the  JJd  of 
March,  and  one  thousand  dollars  tin  Sat- 
urday of  every  week  thereafter,  until  the 
work  was  stofiped.  This  money  wua 
LAW  SALES — 57 


paid  on  one  occasion  by  one  of  the  plain- 
tiffs, an''  on  every  otl)er  occasion  by 
Chi)tain  Williams,  who  called  ar  the  plnin- 
tiffd' iilace  of  business  on  Saturday  of  ev- 
ery Week  to  receive  it,  and  at  the  same 
time  reported  to  them  the  progress  made  in 
the  work.  Currier  &  Townsend  signed  re- 
ceipts for  the  money  as  paid  on  account 
of  a  ship  building  by  them  tor  the  plain 
tiffs. 

On  the  L'lst  of  .May,  Currier  &  TowDsend 
petitioned  for  the  benefit  of  tlie  insolvent 
laws,  and,  ui)on  due  proceedings  had,  the 
defendants  were  chosen  their  assigneeH, 
and  the  shiii  cuuie  into  tlu-ir  possession 
as  such.  The  difendants,  upon  notice  of 
the  pluintiffs'  claim,  refused  to  deliver  the 
ship  to  them,  and  finished  and  sold  her  for 
the  benefit  ot  all  the  creilitors. 

S.  E.  Sewall  and  S.  H.  Phillips, for  plain- 
tiffs, n.  K.  Curtis  and  C.  T.  Kussell,  for 
defendants. 


BIGELOW,  C.  J.  Un.ler  a  contract  for 
supplying  labor  and  materials  and  mak- 
ing a  chattel.no  property  passes  to  the 
vendee  till  the  chattel  is  completed  and 
delivered,  or  ready  to  be  delivered.  This 
is  the  general  rule  of  law.  It  must  pre- 
vail in  all  cases,  unless  n  contrary  intent 
is  expressed  or  clearly  implied  from  the 
terms  of  the  contract. 

In  the  case  at  bar,  no  such  intent  ap- 
pears. The  contract  of  the  l)uilders  was 
to  finish  the  vessel,  and  have  her  ready 
for  sea  at  a  specified  place  on  or  liefore  a 
day  certain.  The  vendees  were  to  pay  a 
H.xed  sum  when  the  vessel  was  completed 
and  ready  for  delivery.  They  were  also 
to  advance  certain  sums,  from  time  to 
time,  amounliiig  to  less  than  half  the  stip- 
ulated price, in  anticipation  of  theconiple- 
tion  of  the  work,  but  tlie  sums  so  to  be 
advanced  were  not  graduated  or  meas- 
ured l)y  the  amount  of  work  done  or  o( 
ma terials  furnislu'd  or  the  jirogress  made 
towards  the  fiiud  fuUilment  of  the  con- 
tiaet.  There  was  no  stipulation  to  pay 
instalments  at  certain  specilied  successive 
stages  of  the  work  ;  it  was  a  mere  agree- 
ment to  make  certain  layments,  by  way  of 
advance,  which  were  lixed  upon  arbitrarily 
without  reference  to  the  extent  of  the  la- 
bor and  materials  actually  ex|)ended  and 
used  for  the  construction  of  the  vessel  at 
the  time  they  were  to  lie  made.  Nor  was 
there  any  right  reserved  to  the  vendees  to 
control  or  direct  the  work,  or  to  exercise 
any  superintendence  or  control  over  it, 
during  its  progress.  It  is  true  that  the 
agent  of  the  vendees  was  allowed  to  be 
present  in  the  ship-yard  where  the  vessel 
was  liuilding,  tint  this  was  by  permission 
only  granted  by  the  builders.  It  was  no 
part  of  the  original  contract,  and  the 
builders  might,  at  any  time,  have  revoked 
this  i)erinission  without  violating  any 
part  of  their  agreement. 

The  case  at  bar  is  clenrly  distinguishable 
from  the  cases  determined  by  the  English 
courts,  which  have  been  cited  in  the  argu- 
meut.  To  say  the  least,  some  of  those 
decisions  rest  upon  very  c|uestlonnble 
grounds.  They  have  been  carefully  re- 
viewed, and  the  validity  of  the  reasons  by 


WILLIAMS  V.  JACKMAN. 


which  it  is  attempted  to  vindicate  them 
has  been  impugned  by  approved  text- 
vrriters,  and  ii:  judicial  decisions  by  courts 
In  this  country.  The  case  of  Andrews  v. 
Durant,  1  Kernan,  85,  contains  an  elabo- 
rate discussion  of  all   the  decided  cases, 


and  an  exposition  of  the  application  of 
the  rule  of  law  to  contracts  for  the  build- 
ing of  ships,  adopted  in  the  state  of  New 
York,  and  confirmed  by  subsequent  de- 
cisions. 
Judgment  for  the  defendants. 


\ 


WILLI AM^  0.  MEULE. 


901 


WILLIAMS  et  al.  v.  MERLE. 

(11  Wend.  80.) 

Supreme  Court  of  New  York.    Oct.  1833. 

This  was  an  action  of  trover,  tried  at 
the  New-York  circuit  in  Octoiier,  \Ki\,  lie- 
fore  the  lion.  Ogdeu  Edwards,  one  of  the 
circuit  judRes. 

About  tlie  first  of  November,  ].s29,  the 
master  of  a  tow-boat  took  byiniHiuke4 
barreis  of  pot-ashes  from  the  warelioiise 
of  tile  plaintiffs,  wlio,  and  t lie  owners  of 
tlie  tow-boa ts.occupiL'd  the  same  building 
in  Albany.  The  master,  on  his  arrival  in 
New-York,  having  discovered  the  mistake, 
delivered  the  articles  to  a  clerk  of  the 
agents  of  his  principals,  who  said  he 
would  take  the  ashes  to  an  inspector's 
office  and  advertise  them.  The  clerk  ac- 
coro'ingly  took  them  to  an  inspector's 
office  on  the  third  of  November,  obtained 
a  certificate  of  inspection,  and  on  the 
sixth  of  November  sold  the  ashes  to  the 
defendant,  a  produce  broker,  who  pur- 
chased them  for  a  Mr.  Patterson, for  a  fair 
price,  and  received  the  inspector's  certifi- 
cate. On  the  tenth  of  November,  the  de- 
fendant took  theashes  from  the  inspector's 
office,  and  shipped  them  to  the  order  of 
his  principal.  About  tlie  first  of  Septem- 
ber, ]N:i(l,  the  plaintiffs  demanded  the  ash- 
es of  the  defendant,  who  refused  to  ac- 
count for  tlieni,  saying  he  had  purchased 
and  paid  for  them  a.  year  preceding  the 
demand.  The  judge  intimated  his  opin- 
ion that  if  the  defendant  had  acquired  the 
ashes  bona  fide  by  purchase,  in  the  regular 
course  of  his  business  as  a  broker,  and 
had  disposed  of  them  bona  tide,  pursuant 
to  the  instructions  of  his  principal  before 
suit  brought,  that  the  action  would  not 
lie;  he,  however,  refused  to  nonsuit  the 
plaintiffs,  and  the  jur.v,  under  his  direc- 
tion, found  a  verdict  for  the  plaintiffs  for 
the  value  of  the  ashes  and  the  interest 
thereof,  reserving  tlie  question  as  to  the 
plaintiffs'  right  to  recover,  for  the  opinion 
of  this  court. 

S.  Stevens,  for  plaintiffs.  C.  Graham, 
for  defendant. 

SAVAGE,  C.  J.  Thequestion  is  whether 
the  plaintiffs  are  entitled  to  recover  upon 
the  facts  of  this  case.  Tliat  they  had  title 
to  the  property  does  not  admit  of  disiiute. 
Has  that  title  been  transferred  to  the  de- 
fendant, and  in  what  manner".'  The  own- 
er of  property  cannot  be  divested  of  it  but 
by  his  own  consent,  or  by  operation  of 
law.  Morgan,  who  took  the  property  by 
mistake,  certainly  ac(iulred  no  title. 
Shankland  (thecleVk)  surely  had.no  title. 
If  the  defendant  has  title,  it  cuhm^s  to  him 
from  a  person  who  had  none.     In  the  lan- 


guage of  Mr.  Justice  Sutherland,  in  Ever- 
ett v.  Coffin,  G  Wendell,  609,  "The  dispos- 
ing or  assuming  to  dispose  of  another 
man's  goods  without  his  authority,  is 
the  gist  of  this  action;  and  it  is  no  an- 
swer for  the  defendants  that  they  acted 
under  instructions  from  another,  who  had 
himself  no  authority."  This  same  I'rinci- 
ple  was  asserted  by  this  court  in  Presrott 
V.  De  Forest,  1()  .lohns.  K.  l.lst,  where  it  was 
held  that  a  landlord  who  distrained  and 
sold  the  goods  of  his  tenaut,  conveyed  no 
title  to  the  purchaser,  the  distress  being 
unauthorized.  The  court  said,  that  if 
Satterlee  (the  landlord)  had  no  riglit  to 
distrain  and  sell  tlie  goods,  it  necessarily 
follows  that  the  defendant,  though  a  bona 
fide  purchaser  for  valuable  consideration, 
acquired  no  title.  So  far,  then,  as  the  de- 
fendant's title  depends  upon  the  purchase 
by  him  in  good  faith,  and  tor  valuable 
consideration,  it  is  still  without  founda- 
tion, so  long  as  the  seller  had  neither  title 
nor  authority  to  sell.  The  owners  were 
not  in  fault;  the  property  was  taken 
without  their  consent  or  knowleilge.  The 
maxim  caveat  emptor  applies;  the  pur- 
chaser must  look  to  the  et-ller  for  indem- 
nity. 

The  defendant's  counsel  contends,  that 
the  act  of  the  legislature  in  relation 
to  the  inspection  of  pot  and  pearl  ashes 
has  placc<l  that  article  upon  a  different 
footing  from  other  merchandize.  The 
act  declares  that  the  certificate  of  the  in- 
spector shall  be  received  as  presumptive 
evidence  of  the  fads  contained  therein; 
and  that  such  ashes  shall  be  sold  in  the 
city  of  New  York  by  the  weigh  note  of  tlie 
inspector,  except  when  sold  iiy  retail.  1 
H.  S.  54S.  §§  tii;.  77.  See,  also,  -J  K.  L.  :M,  §  3. 
This  act  (iocs  not  authorize  the  inspector 
to  declare  who  is  the  owner;  be  gives  the 
certilicate  to  tlie  person  in  possession  of 
the  ashes,  but  nns  no  power  to  determine 
the  questi<m  of  title.  The  certilicate  is 
evidence  of  the  facts  of  inspection  and  such 
other  facts  as  he  is  re<|uired  to  state.  He 
is  to  determine  the  quality ;  to  mark  the 
weight  and  the  fare,  and  some  otherfncts, 
such  as  cruntings  and  scrapings;  the 
damage  appearing  upon  insjiectlon  and 
the  cause  tiiercof;  and  as  to  these  facts 
the  certilicate  is  to  be  presnuiptlve  evi- 
dence, but  purely  of  uothiug  more. 

The  defendant  stands  in  no  better  situ- 
ation than  any  other  who  purchases  an 
article  from  u  party  without  title  or  au- 
thority to  dispose  of  such  article;  In  such 
case,  the  purclinscr  acquires  no  title.  The 
true  owner  has  a  right  to  reclaim  his 
property  and  to  hold  any  one  responsible 
who  has  assumed  the  right  to  dispose 
ofit. 

The  plaintiffs  are  therefore  entitled  to 
juilgnieiit  uiion  the  verdict. 


WINDMULI.ER  c.  POPE. 


903 


WINDMULLER  et  al.  v.  POPE  et  al.> 

(14  N.  E.  Rep.  430,  107  N.  Y.  C74.) 

Court  of  Appeals  of  New  York.    Dec.  G,  18S7. 

Appenl  fro  in  general  term,  Bupremc  court, 
first  (Irpartrneiit. 

Action  brought  by  Louis  Windinuller 
and  Aifred  Koell<er  agninBt  TliornuH  J. 
Pope  anfl  Jnmps  E.  P<)()o  to  recover  <lam- 
agcH  from  defeiulanta  for  tlie  breacli  of 
a  written  contract  for  tlie  Hule  anil  de- 
livery on  the  piirt  of  plaintiim  of  about 
1,1'Oiltona  of  old  iron  Vignol  rails,  to  be 
shipped  from  Europe.  Tlie  cause  wa.s 
.  tried  before  Larroinore,  J.,  and  a  jury,  and 
upon  verdict  f"r  plaintiffs  judgment  ren- 
dered for  .'Slll.-lii'J,  the  amount  of  principal 
and  costs.  t)n  !ipi)eul.  the  general  term 
atlirmed  the  judgment  against  dcfend- 
aiits,  and  tliey  bring  the  case  to  the  court 
of  appeals. 

Carlisle  Norwnoil,  Jr.,  and  W.  W.  Niles, 
for  appellants.  Bernanl  Roelker  and 
Cephas  lirainerd,  for  respondents. 

PER  CDItlAM.  We  think  no  error  is 
presented  II [ion  the  record  which  requires 
a  reversal  of  tlie  judgment.  The  defend- 
ants having  on  the  twelfth  of  .June,  I.SSO, 
notified  the  plaintiffs  that  tliey  would  not 
receive  the  iron  rails,  or  pay  fur  tlieui.and 
having  informed  tliem  on  the  next  tiny 
tlint  if  they  brought  the  iron  to  New  Yoili 
they  would  do  so  at  their  own  peril,  and 
advised  them  that  they  liiid  better  stop 
at  once  attempting  to  carry  out  tlie  con- 
tract, so  as  to  make  the  loss  as  small  as 
possible,  the  |)laiii  tiffs  were  justilied  in 
treating  the  contract  as  broken  by  the  de- 
fendantsat  that  time, and  were  entitled  to 
bring  the  action  immediately  for  the 
breach,  without  tendering  the  delivery 
of  the  iron,  or  awaiting  the  e.xpirntiou  of 
the  period  of  performance  HximI  by  the 
contract;  nor  could  the  deftndaiiis  re- 
tract their  renunciation  of  the  contract 
after  the  plaintiffs  had  acted  upon  it,  and 
by  a  sale  of  the  iron  to  other  parties 
change  their  iiosition.  Dillon  v.  Ander- 
son, 43  N.  \.  231 ;  Howard  v.  Daly,  Gl  N. 
Y.  302;  Ferris  v.  .Spoouer.lOL'  N.  Y  12,  .">  N. 
E.  Rep.  773;  Hochster  v.  De  La  Tour, 2  Kl. 
&l!I.  G7S;  Cort  v.  Railway  Co.,  17  .\dol. 
&  E.  (N.  .S.)  127;  Crabtree  v.  Messersniith, 
1!)  Iowa.  17'.);   Benj.  Sales,  §§  507,  508. 

The  ordinary  rule  of  damages  in   an  ac- 


'An  extract  from  this  opinion  is  reported  in 
107  N.  Y.  <>74:  but  the  opiuion  is  here  siTCn 
in  lull,  as  iv|)orted  in  14  X.  E.  Rep.  430. 


tion  by  a  vendor  of  goods  and  chattels, 
for  a  refusal  by  the  vendee  to  accept  and 
pay  for  them,  is  the  difference  between 
the  contract  price  and  the  market  value 
of  the  property  at  the  time  and  place  of 
delivery.  D.-ina  v.  Piedler.  12  N.  Y.  40; 
Dustan  v.  McAndrew,  44  N.  Y.  72;  Cahen 
V.  Piatt,  Ol)  .N.  Y.  :UH.  The  just  applica- 
tion of  this  rule  to  the  ci^cunl^tance8  Id 
this  case  requires  that,  in  computing  the 
damages,  the  defendants  should  be  cred- 
iteil  with  the  difference  between  the  Ireight 
from  Cronstudt  to  New  York  li,\ed  liy  the 
cliarter-party,  less  the  sum  which  it  cost 
the  plaintiffs  to  be  released  from  the  char- 
ter, and  also  with  any  other  expenses 
which  tlie  pliiintiffs  would  naturally  liave 
incurred  in  perfurming  tli'ir  contract  to 
<leliver  the  iron  in  New  York.  The  con- 
tract price  being  known,  and  tlie  market 
price  of  tlie  iron  in  New  York  iit  the  time 
of  the  breach  and  sub.sequently  having 
been  proved,  as  also  the  sum  which  the 
plaintiffs  paid  for  damages  and  expenses 
on  account  of  the  charter  and  the  cus- 
tomary rjite  of  insurance,  tlie  computa- 
tion of  the  damages  was  a  simple  arith- 
metical problem.  All  these  elements  were 
before  the  jury,  and  the  verdict  doi-s  not 
exceed,  indeed  it  is  less,  than  the  sum 
wliich,  on  the  view  of  the  evidence  most 
favorable  to  the  defemlants,  the  pliiintiffs 
were  entitled  to  recover.  The  plaintiffs* 
on  the  trial  proved  tlie  market  value  of 
the  iron  at  .St.  Petersburg,  where  it  was 
at  the  time  of  the  brt-ach,  and  also  that 
tliey  sold  it  on  the  twelfth  of  .Tuly  at  a 
certain  price.  The  plaintiffs  also  gave 
evidence  of  various  exiienditures  made  by 
them,  which  it  is  unnecessary  to  recapitu- 
late. It  is  claimed  tliat  some  of  these 
items  could  not  properly  be  considered  In 
estimating  the  damages.  Assuming  that 
this  may  tie  true,  the  fact  remains  never- 
theless that  the  verdict  is  fully  warranted 
by  the  competent  and  uncontradicted  evi- 
dence. Tlie  amount  of  the  verdict  is  justi- 
i  lied,  whether  the  market  value  of  the  iron 
in  St.  I'elersburg  or  New  York  is  taken  as 
a  basis.  The  evidence  also  shows  with- 
out contradiction  that,  on  the  resale,  the 
iron  brouglit  its  full  market  value.  Irre- 
spective of  storage,  and  it  is  not  impor- 
tant to  determiue  whether  the  plaintiffs 
could  llx  the  market  price  by  a  sale  with- 
out notice  to  the  defendants. 

There  is  no  merit  in  the  defense,  and  the 
exceptions  are  in  the  main  tci-hiiicnl  and 
frivolous,  and  none  of  ilieni,  we  think,  re- 
quire a  reversal  of  the  judgment.  The 
judgment  is  therefore  atlirmed.  All  con- 
cur^  except  R.\P.\LLO,  J.,  absent. 


WINFIELD  0.  DODGE. 


905 


WINFIELD  7.  DODGE. 
(7  N.  \V.  Rep.  UOO,  4j  Mich.  3r..-..) 
Supreme  Court  of  Michigan.    Jan.  I'J,  l^Sl. 
Error  to  .Jackson. 

Hewlett  Bros,  and  Austin  Blair,  for 
plaintiff  in  error.  Tliouias  A.  WllHon,  for 
defendant  iu  error. 

GRAVES,  J.  Tlio  parties  traded  horses 
on  .Sunday.  Tlie  cxclianKe  was  even  and 
there  was  immediate  delivery.  The  plain- 
tiff lipcanio  (iissatished  and  wi^liin;^  to 
trade  hack  went  the  ne.xt  niominu;  to  the 
defendant's  place  and  made  several  offers 
of  nioney  to  induce  him  to  do  so,  hut  he 
refused.  After  some  bantering  however 
thedefendant  Ravothe  plaintiff  livedollara 
and  a  tobacco  pipe,  for  the  purpose,  as 
explained  at  the  time,  of  averting;  ill  foel- 
iriK.  The  plaintiff  then  returned  home,  but 
wishins  on  further  consideration  to  unilo 
what  had  been  done  ho  asain  ealleil  on 
the  defen<lant  and  peremptorily  insisted 
on  trailin;j;  t)ack  and  he  offered  to  restore 
the  money  he  had  received  and  somotliiii};; 
more  than  the  value  of  the  pipe.  The  de- 
fendant refused  to  listen   to  any  overture. 

The  plaintiff  then  brought  replevin  be- 
fore a  justice  and  obtained  judumont    and 


the  defendant  appealed.  Thocircult judge, 
on  the  close  of  the  evidence,  took  the  case 
from  the  jury  and  ordered  a  verdict  for  the 
defendant.  'I'his  rulinii  went  on  the 
theory  that  the  transaction  on  Monday 
ainounte<l  to  a  new  contract  by  which 
tlie  title  became  established  in  defendant 
and  that  no  room  for  any  other  view  ex- 
isted. We  think  this  was  error.  The  case 
maile  l)y  the  evidence  was  not  necessarily 
of  the  character  assumed.  The  transac- 
tion on  Sunday  passed  no  title.  As  a 
trade  it  was  vdid,  and  the  evidence  of 
what  took  place  on  Monday  was  not  con- 
clusive that  there  was  anytliinc  more  than 
an  attem|>t  to  ratify  and  validate  tin' .Sun- 
day negotiation;  and  of  course  a  ratifica- 
tion of  that  trade  was  impossiDlc;  unless 
there  was  a  new  contract  tlie  plaintiff 
was  entitled  to  reclaim  his  horse  against 
the  void  neg(itiatiou.  No  new  contract 
could  Ik-  made  without  a  mutual  assent  of 
the  parties,  nn<l  unless  the  plaintiff  intend- 
ed to  make  une  the  title  was  not  affected 
by  the  occurrences  subsequent  to  the 
transaction  on  Sunday, ami  whether  there 
was  such  new  contract  was  a  question  for 
the  jury  on  the  whole  evidence  under 
proper  instructions. 

The  judgment  must  he  reversed  with 
costs  and  a  new  trial  granted. 

(The  (jther  justices  concurred.) 


WING  V.  MEIifllAXT. 


907 


■WT^G  T.  MERCHANT. 

(57  Me.  383.) 

Supreme  Judicial  Court  of   Maine.     Middle  Dis- 
trict, istra. 

On  report.  AnsiimpHit  by  the  executoror 
Timothy  Woodward,  deceased,  to  recover 
Ifl'iKI  left  with  defendant, for  inveHtment,by 
deceased.  Defendant  claimed  tliat  the 
money  was  the  pi-u|)erty  of  his  wife,  the 
daiishterof  the<leceaKed.  under  a  sift  to  lier 
by  lier  father  about  three  years  lielore  Ids 
decease.  There  was  evidence  the.  t  in  ls»;2 
Timothy  Woc)dward  left  with  his  daughter 
Mrs.  Merchant  some  notes  payable  to  him- 
self, a  mount  inc  to  a  bout  §200,  for  safe-keep- 
ing. She  collected  interest,  and  let  her 
father  have  money,  as  he  called  for  it,  until 
about  three  years  before  he  died,  when,  as 
Bhe  testified,  "my  father  Kavo  tlie  money 
to  me.  He  said  he  did  not  think  this 
would  be  any  help  to  my  insane  sister. 
Mary,  if  he  should  save  it  for  her  snpjiort, 
and  I  h;id  done  more  for  him  than  all  the 
rest  of  his  children,  and  staid  with  him 
lontcer,  and  he  jjave  it  tome.  There  was 
no  one  present  when  the  notes  were  Riven 
to  me.  He  was  at  my  house  at  the  time, 
in  the  siftinft-room.  'J'he  notes  were  at 
the  time  in  a  box  in  a  chest,  and  the  chest 
in  my  sleepiiifrrooin.  Do  not  know  as 
father  diil  any  thiiiK  at  the  time  any  more 
than  to  tell  me  that  he  i;nve  them  to  me 
for  my  labour,  and  what  I  had  done  for 
him."  After  the  notes  were  uiven  to  Mrs. 
Merchant,  her  sister,  becoming  iuKane, 
was  supported  at  the  insanehos[)ital,and 
the  money  from  th(!  notes  was  paid  by 
Mrs.  Merchant  for  her  support. 

A.  Liliby,  for  plaintiff.  S.  Lancaster, 
lor  defendant. 

BARROWS,  J.  Thecircumstances  which 
oblige  us  in  some  cases  to  look  with  sus- 
picion upon  a  defense  which  asserts  that 
propert.v  claimcil  by  an  executor  or  ad- 
ministrator in  his  representativecapacity, 
ha.-i  passed  by  a  Rift  from  the  deceased  to 
one  of  his  heirs,  are  not  found  in  the  case 
at  bar.  Tlie  defendant,  with  the  consent 
of  his  wife  to  whom  it  is  claimed  the  prop- 
erty wnsgiven,  has  appropriatcil  it  already 
for  the  benefit  and  support  of  on  insane 
sister  of  the  wife,  a  d«ut;hter  of  the  de- 
ceased, and  he  is  indemiiitied  aj^ainst  ulti- 
mate liahilit.v  in  thio  suit.  The  testimony 
';oraes  free  from  selfish  bias;  and  the 
naked  <|uestion  is,  whether  enough  was 
said  and  done  by  Timothy  Woodward, 
theplaintiff'stestator,  toc(mstitutea  valid 
gift.  The  money  and  notes,  amounting 
to  about  $200,  had  l)een  placed  by  the  tes- 
tator, several  years  before  hisdeath.in  the 
liands  of  the  defendant  for  safe-keepinu;; 
and  for  some  time  subsequently  he  was 
accustomed  to  call  on  the  defendant  and 
his  wife  for  such  little  sums  as  he  wanted 
on  account  of  them,  and  the  dpfendant 
kept  an  account  of  what  was  thus  repaid. 
The  wife  personally  had  the  char>;e  of  the 
notes  and  kept  them  in  a  box,  winch  was 
placed  in  a  client  in  her  sleeninjj-room.and 
she  seems  to  have  made  most  ot  the  small 
paym''nts  to  her  father  which  he  called 
for.     While   the   matter  stood   thus,  three 


or  four  years  before  the  testator's  death, 
as  Mrs.  Merchant,  the  defendant's  wife 
testifies,  he  said,  in  conversation  with 
her  about  the  money  represented  hy  these 
notes,  that  she  h:id  done  more  fur  him 
than  all  the  rest  of  his  children;  had  staid 
with  him  longer;  and  that  he  nave  it  to 
her.  The  notes  were  then  in  tlie  box  in 
her  sleepini^-room ;  they  were  nut  in- 
dorsed; they  were  payableto  her  lather. 
She  says, '•  i  do  not  know  as  father  did 
anything  at  the  time  anv  more  than  to 
tell  me  that  he  Kiive  them  to  me  for  my 
labor  and  what  I  had  done  for  him.  .  .  . 
After  he  y;ave  me  the  notes  he  never  called 
on  me  for  any  money." 

It  would  seem  that  tliere  was  no  seltish 
solicitation  for  the  jjift.  but.  on  the  con- 
tr;iry,  that  Mrs.  Merchant,  in  this  conver- 
sation, and  the  defendant  in  another  talk 
with  tlie  testator  about  the  same  time, 
suffuestcd  to  him  that  it  ou^ht  to  be  ap- 
pr(»priated  for  the  support  of  the  insane 
sister,  ami  that  when  he  Rave  the  notes  to 
Mrs.  .Slerchant,  he  saitl,  njiparently  in  re- 
pl.v  to  these  suKttestions.  that  he  "did  not 
think  this  would  be  any  help  to  her  if  he 
should  save  it  for  her  support. " 

Now  it  is  insisted,  on  the  part  of  the 
plaintiff,  that  hero  was  no  indorseraeut 
of  the  notes,  and  no  delivery  ot  them  to 
.Mrs.  Merchant  at  the  tinieof  ihe  cinversa- 
tion,  and  coiiseciiiently  no  valid  sift. 

lUit  it  has  iieen  settled,  that  a  valid  gift 

of   a   nei;otial)le  promissory  note  may  be 

I  made,  either   inter  vivos  or  causa  mortis. 

j  without   indorsement   or    other   wrilinc. 

(Jrover  v.  (Jrovei-.  21  Pick.  2til  ;  Borneman 

V.  .Sideliimer,  15  .Me.  -129. 

To  perfect  the  sift  in  either  case,  deliv- 
ery to  the  donee  or  to  some  person  for  him 
is  necessary  ,  such  delivery  as  tlie  subject 
ofthejriftis  capable  of.  But,  in  case  of 
a  sift,  inter  vivos,  wliere  the  proiierty  has 
passed  into  the  possessiim  of  the  donee, 
and  has  been  held  hy  him  in  a  manner  in- 
dicating a  change  of  the  title  to  the  prop- 
erty, and  a  recognition  of  the  donee's  title 
by  tlie  donor,  proof  of  actual  manual  tra- 
dition at  the  time  of  makiii;j;  the  ^itt  may 
well  be  dispensed  with. 

No  particular  ceremony  is  necessary  to 
constitute  a  delivery  wlien  there  is  actual 
possessijin  by  the  donee,  accompanied  by 
satisfactory  eviilence  that  the  donor  has 
relinquished  all  control  uf,  and  claim  to 
the  subject  of  thej;ift,ir.  her  favor.  I  bor- 
row a  book  of  my  friend,  anil,  while  it  \a 
in  my  possession,  he  says.  "I  make  you  a 
present  of  it,"  and  I  hold  it  thereafter- 
wanls  as  mine;  it  cannot  he  essential  to 
the  validity  of  the  fjift  that  I  should  lirst 
put  it  into  his  hands  in  order  that  it  may 
be  returned  to  mine.  Lex  non  cogit  ad 
vana  sen  inutilia. 

The  actual  transfer  of  possession  to  the 
donee  whenever  and  however  accom- 
plished, if  supplemented  liy  plenary  evi- 
dence of  nn  intentional  release  to  the 
donee,  on  the  (lart  of  the  donor,  per  verba 
de  pnesenti  of  any  and  all  rij-ht  or  claim 
ever  to  resume  the  iiossessiun.  or  to  de- 
prive the  donee  of  it,  will  make  a  complete 
Kift  inter  vivos.  It  matters  not  whether 
the  change  of  possession  takes  place  be- 
fore or  after,  or  at  the  time  of  the  utter- 
ance of  the  words  importing  a  gift,  if  there 


908 


WING  V.  MERCHANT. 


is  a  manifest  design  on  tlie  part  of  the 
donor  that  the  flonee  shoiihl  theroafter- 
wards  bold  such  possession  ab.solulely  as 
of  his  own  property.  Theuceforvvard,  the 
possession  and  the  ri^lit  are  concurrent  in 
the  same  person,  and  tliegift  is  perfect  and 
Irrevoeahie. 

These  elements  we  find  in  tlie  case  at 
bar.  The  notes  were  already  in  the  pos- 
spssifin  of  Mrs.  Merchant,  when  the  tes- 
tator, in  conversation  witli  her  respecting 
tlieui.  used  lanttna'-Te  importing  a  pre-sent, 
absolute,  unconditional  gift,  and  a  mak- 
ins  over  of  all  his  interest  in  thcni  toiler. 
From  that  lime  during  the  remaining 
three  or  four  years  of  his  lil'e,  he  never 
called  upon  her  or  her  husband  for  small 
sums  on  account  of  them,  us  he  had  before 
been  accustomed  to  do.  Th.e  defendant 
exchanged  the  notes  for  others,  and  paid, 
not  to  the  testator, but  to  Mrs.  Merchant, 
such  sums  on  account  uf  them  as  she 
called  for. 


There  is  au  essential  difference  between 
this  case  and  that  of  Shower  v.  Pilck,  4 
E.\ch.  47S,  relied  on  for  the  plaintiff. 

There,  though  the  silver  plate  was  in 
the  possession  of  the  alleged  donee,  the 
language  of  the  testator  implied  nothing 
beyond  a  promise  to  give  in  the  future. 

Judgment  for  the  defendant. 

KENT,  WALTON,  DANFORTH,  and 
TAPLEY,  JJ.,  concurred. 

APPEETON,  C.  J.  I  concur  in  the  opin- 
ion. Delivery  is  essential  to  pass  the  title 
to  a  chattel  by  gift;  but  if,  at  the  time, 
the  don2e  is  in  possession,  as  the  donor's 
agent,  he  need  not  surrender  it  for  a  rede- 
livery; if  the  donor  relinquislies  all  domin- 
ion and  control, aud  reci)gnizcs  thedonee's 
possession  as  being  in  his  own  right,  and 
the  donee  so  accepts  and  releases  posses- 
sion wih  the  donor's  consent,  it  is  suffi- 
cient.   Tenbrook  v.  Brown,  17  Ind.  410. 


WINSOR  V.  LOMBARD. 


911 


WINSOR  et  al.  v.  LOMBARD  et  aU 

(18  Pick.  57.) 

Supreme  Judicial  Court  of  Massachusetts.    Suf- 
folk and  Nantucket.     April  5,  1S36. 

Assumpsit  on  a  warranty  alleged  to 
have  been  Riven,  upon  the  sale  of  a  quan- 
tity of  mackerel  by  tlie  defendants  to  the 
plaintiffs.     Trial  before  .Shaw,  C.  J. 

The  bill  of  parcels,  which  was  receipted 
and  wa.s  dated  Mu.v  ~M,  1S34,  net  forth, 
that  the  plaintiff  Winsor  bmijiht  of  tlio 
defendants  rj'J  barrels  and  C'J  liulf  barrels 
No.  1  mackerel,  and  :!7l)  barrels  and  19G 
half  barrels  No.  2  mackerel. 

The  plaintiffs  introrluced  evidence  for 
the  purpose  of  showing,  that  they  were 
joint  purclinsors;  but  havin;:;  failed  to 
prove  that  they  were  jointly  interested  in 
the  purchase,  their  counsel  moved  for 
leave  tlio  strike  out  the  name  of  I'ele<; 
Churchill,  one  of  tiie  plaintiffs.  This  was 
allowed,  although  objecteil  to  by  the  de- 
fendants; and  the  trial  procet-ded  as  if  the 
action  had  been  originally  commenced  in 
the  name  of  Winsor  alone.  The  defend- 
ants excepted  to  this  ruling. 

There  was  evidence  tending  to  show, 
that  the  lish  were  damaged,  but  thut  the 
dnniage  proceeded  principally  from  rust; 
that  this  is  caused  by  the  leaking  out  of 
the  pickle,  after  the  fish  have  been  i)ackcd, 
inspected  and  branded  ;  and  that  although 
fish  affected  by  rust  are  greatly  deteri- 
orated, anil  are  never  marked  by  the  in- 
spector as  No.  1  or  No.  2, yet  that  they  are 
not  wholly  unmerchantable,  but  are  al- 
lowed to  pass  inspection  as  No.  3.  All 
claim  for  damage  arising  from  any  other 
cause  than  rust,  was  expressly  waived  by 
the  plaintiff. 

The  jury  were  instructed,  that,  upon  a 
sale  by  a  bill  of  i)arcels,  like  that  in  this 
case,  although  the  article  sold  was  one  re- 
quired, by  the  statutes  of  the  common- 
wealth, to  be  Inspected  by  a  public  in- 
spector, and  although  the  mackerel  were 
inspected  and  branded  No.  1  and  No.  2,  in 
pui'snance  of  the  statutes,  yet  as  to  dam- 
age arising  from  causes  originating  after 
they  were  so  inspected  and  liranded,  there 
was  an  implied  warranty,  that  the  tish 
were  in  a  good  condition,  and  of  a  mer- 
chantable quality  of  mackerei  of  those 
brands  respectively,  at  the  time  of  the 
sale;  and  t!i;it,  therefore,  if  the  jury  were 
of  opinion,  that  the  fish  were  damaged  by 
rust,  and  that  this  was  occasioned  by 
causes  originating  after  the  mackerel  had 
been  inspecteil  and  branded,  and  further, 
if  according  to  the  kno>vn  usage  of  the 
trade,  uinckerel  affected  by  rust  are  ni>t 
considered  as  No.  1  or  .N'o.  2,  though  tliey 
may  pass  as  No.  3,  there  was  a  l)reach  of 
the  implied  warranty,  for  which  the  plain- 
tiff was  entitled  to  recover  damages. 

To  this  instruction  the  defendants  ex- 
cepted. 

There  was  also  evidence  tenrling  to 
show,  that  the  lish  in  qiiesiion  were 
packed,  inspecteil  and  l)randtMl  in  the  au- 
tumn of  is:!:!;  that  the  casks  were  then 
well  filled  with  pickle;  and  that  the  sale 
tocjk  place  iu  the  following  .May. 


In  reference  to  this  evidence,  the  j\iry 
were  instructed,  that  if  the  damage  arose 
from  rust,  and  the  cause  of  the  rust  was 
the  want  c)f  pickle,  commencing  after  the 
inspection  and  l)efore  the  time  of  the  sale, 
it  was  one  of  those  things  against  which 
the  defendants  warranted,  even  although 
thej-  believed  that  the  mackerel  were,  at 
the  time  of  the  inspection,  what  the 
brands  on  the  casks  Indicated,  and  that 
for  aught  they  had  known  to  the  con- 
tr;iry,  these  br.'inils  had  been  truly  and 
faithfully  applied,  and  that  no  alteration 
or  change  had  happened  witinn  their 
knowledge. 

To  this  Instruction  the  defendants  ex- 
cepted. 

If  either  of  thise  instructions  was  incor- 
rect, the  verdict,  which  was  for  the  plain- 
tiff, was  to  be  set  aside,  and  a  new  trial 
granted. 

Uexter  and  English,  for  plaintiffs. 
Washburn,  for  defendants. 

.SlIAW,  C.  J.  The  court  are  of  opinion, 
thai  the  amendment  iu  striking  out  the 
name  of  one  of  the  plaintiffs,  was  admissi- 
ble. 

lUit  tlie  main  question  arises  upon  the 
Buppoi-cd  implied  warranty,  that  the  fish, 
at  the  timecjf  Hie  sale,  were  merchantable. 
This  was  a  sale  of  inspected  lish,  and 
there  is  nothing  in  the  bill  of  parcels  im- 
porting an  express  warranty.  Then  the 
question  is.  whether  there  was  an  implied 
warranty  triat  the  lish  were  merchantable 
or  tree  from  ilamiige  at  the  time  of  the 
sale?  It  was  ruled  at  the  trial,  that  there 
was,  for  the  i)urpose  of  receiving  the  evi- 
dence, so  that  all  the  ()uestioiis  might  be 
brcjuglit  before  the  court  at  once;  lint  up- 
on a  revision  of  the  case,  the  court  are  all 
of  opinion,  that  the  action  cannot  be 
uiaiiiliiined. 

The  (dd  rule  upon   this   subject  was  well 
settled,  that  upon  a  sale  of  goods.  If  there 
be  no  express  warranty  of   the   quality  of 
the  goods  sold,  and  no  actual   frauti,  l)y  a 
willful      misivpi-esentation.     the     maxim, 
■caveat   emptor,    applies.     Without   going 
1  at  large  into  the  <loctriiie   upon    this  sub- 
ject,  or  attempting    to   reconcile    all    the 
cases,  which  would  certainly  be  very  dilR- 
cult,  it  maybe  sullicieiit    to   say    thut,  in 
this  commonwealth,  the   law  has   under- 
gone some   modilication,   and   it   is   now 
held,  that  without   express    warranty   or 
actual  fraud, every  person  who  sells  goods 
of  a  certain  denomination  or  description, 
undertakes  as  part   of   Ids  contract,  that 
I  the  thing  delivered  corresponds   tti  the  de- 
I  scriptioii,  and  is  in  fact   an    article   of   the 
species,  kind    and   quality  thus  expressed 
!  in  the  contract  of  sale.     Hastings    v.  Lov- 
ering,  2   Pick.    214;   llogins    v.    I'lympton. 
11  Pick.  !>7. 

Indeed  this  rule  seems  to  be  now  well 
settled  in  lOngland.  In  an  action  for  a 
breach  nf  warranty,  a  vessel  was  adver- 
tised and  sold  as  a  copper-fastened  vessel, 
but  sold  as  slic  lay  with  :ill  faults.  It  u|>- 
peared  that  she  was  only  iiartially copper- 
fastened,  and  not  wliat  is  known  to  the 
traile  as  a  copper-fasteneil  vessel.  It  was 
held  that,  "  with  all   faults,"  must   be   uu- 


912 


WINSOR  0.  LOMBARD. 


derstood,  all  faults  which  a  copper- 
fasteneil  vessel  may  have.  Shepherd  v. 
Kaiii.u  I!arii.&  Aid.  LMO. 

The  rule  heius,  that  upon  a  sale  nl 
goods  I) v  a  written  memorandum  or  1)111 
of  parcels,  the  vendor  undertakes,  in  the 
nature  of  warrantiUK,  that  the  thiuK  sold 
and  delivered  is  that  which  is  described, 
this  rule  applies  whether  the  description 
be  more  or  less  particular  and  exact  in 
enumerating  the  qualities  of  the  goods 
sold. 

In  applving  this  rule  to  the  present  case, 
the  question  is,  what  did  the  parties 
mutually  unilerstand  by  their  contract, 
as  it  was  reduceil  to  writins.  It  purport- 
ed to  be  a  sale  of  certain  barrels  and  half 
barrels  of  No.  1,  and  others  of  No.  2  mack- 
erel. It  is  a  familiar  rule,  that  every  con- 
tract is  to  be  construed  accordiu;;  to  the 
subject,  and  with  reference  to  those  cir- 
cumstances which  are  so  notorious,  that 
all  persons  conversant  with  the  branch  of 
trade,  to  whicli  t!ie  sale  relates,  must  be 
presumed  to  be  acquainted  with  thera.  In 
the  sale  of  mackerel,  both  parties  must  be 
presumed  to  be  acquainted  with  the  in- 
spection laws,  both  must  be  understood 
to  know  the  season  of  the  year  when  this 
species  of  fish  are  causlit,  packed,  and 
branded,  and  the  species  of  damage  and 
deterioration,  to  svhich  tliey  are  liable, 
and  that  if  mackerel  aresold  in  the  spring, 
they  cannot  be  of  an  inspection  more  re- 
cent, than  that  of  the  preceding  autumn. 
Willi  these  circumstances  mutually  under- 
stood, we  have  no  doubt,  that  when  thtsij 
fish  were  sold  as  No.  1  and  2,  the  under- 
standing of  tlie  parties  was,  that  they 
were  fisli,  packed,  inspected  and  branded 
as  of  those  numbers  respectively. 

It  was  in  evidence,  that  fish  infected 
with  that  species  of  damage  called  rust, 
a  damage  contracted  by  the  leaking  out 
of  the  pickle, after  the  fish  have  passed  un- 
der the  brand  of  the  inspector,  maj*  be 
packed  and  Inspected  as  No.  3,  but  that 
iiowevergood  in  other  respects,  they  can- 
not be  considered  or  marked  as  No.  1  or  '2. 
Upon  this  ground  it  was  contended  by  the 
plaintiffs,  that  the  effect  of  tl!e  contract 
of  the  defendants  was.  that  the  mackerel 
were,  at  the  time  of  the  sale,  fisli  of  the 
quality  known  as  No.  1  and  2;  that  a.s 
they  could  not  be  of  those  qualities,  if 
they  were  rusty,  It  was  describing  them 
by  a  quality  which  they  did  not  then  pos 
sess;  and  that  this  was  a  breach  of  war- 
ranty. But  we  are  all  of  opinion,  that  this 
would  be  a  forced  and  erroneous  construc- 


tion of  the  instrument.  Construed  witfi 
reference  to  the  subject  matter,  we  think 
they  must  have  understood,  that  the  fish 
were  inspected  and  branded  as  No.  1  and 
No.  2.  In  this  respect  the  parties  referred 
to  the  brand.'aad  to  this  extent  they  acted 
upon  the  faith  of  it.  Then,  as  there  was 
no  express  warranty  oftheir  actual  condi- 
tion, or  of  the  manner  in  which  they  were 
kept  and  taken  care  of.  after  the  inspec- 
tion, and  from  that  time  to  the  sale,  and 
as  there  was  no  description  embracing 
these  particulars,  it  must  be  presumed, 
that  both  parties  relied  upon  the  faith  of 
the  inspection  and  brand.  But  if  the 
plaintiff  would  hold  the  defendants  re- 
sponsible, as  upon  a  fraud,  he  must  show 
that  they  knew  that  the  brand  was  false- 
ly applied,  or  that  after  the  ins[)ection  and 
before  the  sale,  they  had  become  damaged 
by  rust;  but  no  such  evidence  being  given, 
and  no  such  case  suggested,  the  action 
cannot  be  supported. 

It  is  supposed  tliat  a  different  rule  ap- 
plies to  the  case  of  all  provisions  from  that 
applicable  to  other  merchandise.  This 
matter  is  well  exjilained  by  Air.  .Justice 
Sewall,  In  Emerson  v.  Brighsm.  10  Mass. 
H.  1!)7.  In  a  case  of  provisions,  it.  will 
readily  be  presumed  that  the  vendor  in- 
tended to  reiiresent  thera  as  sound  and 
wholesome,  because  the  very  offer  of  ar- 
ticles of  food  for  sale  imi)lies  this,  and  it 
may  readily  be  presumed  that  a  common 
vendor  of  articles  of  food,  from  the  nature 
of  his  calling,  knows  whether  they  are 
unwhtdesome  and  unsound  or  not.  From 
the  fact  of  their  being  bad,  therefore,  a 
false  and  fraudulent  representation  may 
readily  be  presumed.  But  these  reasons 
do  not  apply  to  the  case  of  provisions, 
packed,  insjiected,  and  prepared  for  ex- 
portation in  large  quantities  as  merchan- 
d'se.  The  vendee  does  not  rely  upon  the 
supposed  skill  or  actual  knowledge  of  the 
vendor,  but  both  rely  upon  the  skill  and 
responsibility  of  the  inspector,  as  verified 
by  the  brand,  for  all  <)ualities  which  the 
brand  indicates;  and  for  damage  which 
may  happen  afterwai'ds,  and  against 
which,  therefore,  the  brand  offers  no  se- 
curity, the  vendee  must  secure  himself  by 
the  terms  of  the  contract;  and  unless  lie 
dt)es  so,  or  unless  he  is  deceived  by  a  false 
representation  of  the  present  and  actual 
condition  of  the  commodity,  on  which  he 
would  liave,  a  remedy  of  a  different  char- 
acter, lie  must  be  supposed  to  have  been 
content  to  take  the  risk  on  himself. 

New  trial  granted. 


WOOD  V.  nOVNTON'. 


915 


WOOD  V.  BOTNTON  et  al. 

(25  N.  W.  Rep.  42,  64  Wis.  2C5.) 

Supreme  Court  of  Wisconsin.    Oct.  13,  1885. 

Appeal  frura  circuit  court,  Milwaukee 
county. 

Johnson,  Rietbrock  &  HalHcy,  for  appel- 
lant.   N.  S.  Murphpy,  for  respondentH. 

TAYLOR,  J.  This  action  was  brouRht 
in  the  circuit  court  for  Milwaukee  comity 
to  recover  the  posse.s.sion  of  an  uncut 
diamond  of  the  alloKed  value  of  $1,()0(). 
The  case  was  tried  in  the  circuit  court, 
and  after  heurlii;;  all  the  evidence  in  the 
case,  the  learned  circuit  judne  directed  the 
jury  to  find  a  verdict  for  the  defendants. 
The  plaintiff  excepted  to  such  instruction, 
and,  after  a  verdict  was  rendered  for  the 
defendants,  moved  for  a  ne%v  trial  upon 
the  minutes  of  the  judfre.  The  motion 
was  denied,  and  the  i)laintiff  duly  e.M'cpt- 
ed,  an<l  after  judKmeni  was  entered  In  fa- 
vor of  the  (lefendnntH,  appealed  to  this 
court.  The  defendants  are  partners  in 
the  jewelry  business.  On  the  trial  it  ap- 
peared that  on  and  before  the  twonty- 
eiKhth  of  December,  Ins:},  the  plaintiff 
was  the  owner  of  and  in  the  posses- 
sion of  a  small  stone  of  the  nature  and 
value  of  which  she  was  ignorant;  that 
on  that  day  she  sold  It  to  one  of  the 
defendants  for  the  sum  of  one  dollar.  Aft- 
erwards it  was  ascertained  that  the  stone 
was  a  roujrh  diamond,  and  of  the  value 
of  about  ifTOO.  After  learninp:  this  fact  the 
plaintiff  tendered  the  defend-ints  thci  one 
dollar,  and  ten  cents  as  interest,  and  de- 
manded a  return  of  the  stone  to  her.  The 
defendants  refused  to  deliver  it,  and  there- 
fore she  commenced  this  action. 

The  plaintiff  testified  to  the  circuin- 
Btances  attending  the  sale  of  the  stone  to 
Mr.  Samuel  B.  B(»ynton,as  follows:  "The 
first  time  Boynton  saw  that  stone  ho  was 
talking  about  buying  the  topaz,  or  what- 
ever it  is,  in  September  or  October.  I 
went  into  his  store  to  get  a  little  pin 
mended,  and  I  had  it  in  a  small  lio.'c, — the 
pin,— a  small  ear-ring;  •  •  •  this 
stone,  and  a  broken  sleeve-button  wen; 
in  the  box.  Mr.  Boynton  turned  to  give 
me  a  check  tor  mj'pin.  I  thought  I  woulil 
ask  him  what  the  stone  was,  and  I  to<di 
it  out  of  the  box  and  asked  him  to  please 
tell  me  what  that  was.  He  took  it  in  his 
hand  and  seemed  some  time  lo(d<ing  at  it. 
1  told  him  I  had  been  told  it  was  a  topaz, 
and  he  said  it  might  be.  He  says,  'I 
would  buy  this;  wouhl  you  sell  it?'  I 
told  liim  I  did  not  know  hut  what  I  would. 
What  would  it  be  worth?  And  he  said  he 
did  not  know  ;  he  would  give  mo  a  dollar 
and  keep  it  as  a  specimen,  and  I  told  hiiu 
1  would  not  sell  it;  and  it  was  certainly 
pretty  to  look  at.  He  asked  me  where  I 
found  it,  and  I  told  him  in  ICagle.  lie 
asked  about  how  far  out,  and  I  said  right 
in  the  village,  and  I  went  out.  .\ftor- 
wards,  and  about  the  twenty-eighth  of 
December,  I  needed  money  pretty  badly, 
and  thought  every  dollar  would  help,  and 
I  took  it  back  to  Mr.  Boynton  and  t<dd 
him  I  had  brought  back  the  topaz,  and  he 
nays,  '  Well,  yes;  what  did  I  offer  you    for 


it?'  and  I  eays,  'One  dollar;'  and  he 
stepped  to  the  change  drawer  and  gave 
me  the  dollar,  and  I  went  out."  in  an- 
other part  of  her  testimony  she  says:  "Be- 
fore I  sold  the  stone  I  had  no  knowledge 
whatever  that  it  was  a  diamond.  I  told 
him  that  I  liad  been  advised  that  it  was 
prcdiably  a  topaz,  and  he  said  proltably 
it  was.  The  stone  was  about  the  size  of 
a  canary  bird's  egg,  nearly  the  shaiie  of 
an  egg.— worn  pointed  at  one  end;  it  was 
nearlystraw  color,— a  little  darker.  "  She 
also  testiHed  that  bef(jre  this  action  was 
commenced  she  tendered  the  defendants 
$1.1 1),  and  demanded  the  re  turn  of  the  stone, 
wliiidi  they  refuseil.  'I'his  is  substantially 
all  the  evidence  of  what  took  jdace  at  anil 
before  the  sale  to  the  defendants,  as  tes- 
tllied  to  by  the  plaintiff  herself.  She  pro- 
duced no  other  witness  on  that  point. 

The  evidence  on  the  part  of  the  defend- 
ant is  not  very  different  from  the  version 
given  by  the  pbiintiff,  and  certainly  Is  not 
more  favorable  to  the  plaintiff.  Mr.  Sam- 
uel B.  Boynton,  the  defendant  to  whom 
the  stone  was  sold,  testified  that  at  the 
time  he  bought  this  stone,  he  had  never 
seen  an  uncut  diamond;  had  seen  cut  dia- 
monds, but  they  are  (juite  different  ironi 
the  uncut  ones;  "he  had  no  idea  this  was 
a  diamond,  and  it  never  entered  his  brain 
at  the  time."  t'onsiderable  evidence  was 
given  as  to  what  took  place  after  the  sale 
and  purchase,  but  that  evideiiL'e  has  very 
little  if  any  bearing,  upon  the  main  point 
in  the  case. 

This  evidence  clearly  sliows  tliat  the 
plaintiff  sold  the  stone  in  (luestion  to  the 
defendants,  and  delivered  it  to  tliem  in  De- 
cember, 1nn:j,  lor  a  consideration  of  one 
dollar.  The  title  to  the  stone  passed  by 
the  sale  and  delivery  to  the  d.-fendants. 
How  has  that  title  been  divestnl  and 
ag:iin  vested  in  the  plaintiff?  The  con- 
tention of  the  learned  counsel  for  the  ap- 
jiellant  is  that  the  title  became  vested  in 
the  [ilaintiff  liy  the  tender  to  the  Boyn- 
tons  of  the  purchase  money  with  interest, 
and  a  demand  of  a  return  of  the  stone  to 
lier.  TJnless  such  tender  and  demand  re- 
vested the  title  in  the  appellant,  she  can- 
not maintain  her  action.  The  only  ques- 
tion in  the  case  is  whether  there  was  any- 
thing in  the  sale  which  entitled  the  vendor 
(the  appellant)  to  resi'ind  fhes;ile  and  so 
revest  the  title  in  her.  The  only  reasons 
we  know  of  for  rescinding  a  sale  and  re- 
vesting the  title  in  the  vendor  so  that  ho 
may  maintain  an  action  at  law  for  the  re- 
covery of  the  possession  against  his  vendee 
are  (1)  that  the  vendee  was  guilty  of  some 
fraud  ill  procuring  a  sale  to  be  made  to 
him;  (2>tliat  there  was  a  mistake  madeby 
the  vendor  in  delivering  an  article  which 
was  not  the  article  sold, — a  mistakein  fact 
as  to  the  identity  of  the  thing  sold  with 
the  thing  delivered  upon  the  sale.  This 
last  is  not  In  reality  a  rescission  of  the 
sale  made,  as  the  thing  delivered  was  not 
the  thing  sold,  and  no  title  ever  passed 
to  the  vendee  by  such  delivery. 

In  this  case,  upon  the  plaintiff's  own  ev- 
idence, there  can  be  no  just  ground  for  al- 
leging that  she  was  Induced  to  make  the 
sale  siie  did  l)y  any  fraud  or  unfair  deal- 
ings on  tlie  part  of  Mr.  Boynton.  Both 
were  entirely  ignorant   at   the  time  of  the 


916 


WOOD  V.  BOYNTON. 


character  of  the  stone  and  of  its  intrinsic 
value.  Mr.  Boynton  was  not  au  expert 
in  unout  dianionils,  and  hail  made  no  ex- 
amination of  the  stone,  except  to  ta lie  it 
In  hie  hand  and  look  at  it  before  he  made 
the  offer  of  one  dollar,  which  was  refused 
at  the  time,  and  afterwards  accepted 
without  any  comment  or  furtherexamina- 
tion  made  by  Mr.  Boynton.  The  appel- 
lant had  the  stone  in  her  possession  for  a 
long  time,  and  it  appears  from  her  own 
Btatenient  that  she  had  made  some  in- 
quiry as  to  its  natiireand  qualities.  If  she 
chope  to  sell  it  without  further  investiga- 
tion as  to  its  intrinsic  value  to  a  person 
who  was  guilty  of  no  fraud  or  unfairness 
which  induced  her  to  sell  it  for  a  small 
sum,  she  cannot  repudiate  the  sale  be- 
cause it  is  afterwards  ascertained  that  she 
made  a  bad  bargain.  Kennedy  v.  Pan- 
ama, etc..  Mail  Co.,  L.  K.  2  Q.  B.  580. 
There  is  no  pretense  of  any  mistake  as  to 
the  identity  of  the  thing  sold.  It  was 
produced  by  the  plaintiff  and  exhibited 
to  the  vendee  before  the  male  was  made, 
and  the  thing  sold  was  delivered  to  the 
vendee  when  the  purchase  price  was  paid. 
Kennedy  v.  Panama,  etc..  Mail  Co.,  supra, 
587;  Street  v.  Blav,  2  Barn.  &  Adol.  456; 
Gompertz  v.  Bart'lett,  2  El.  &  B1..S4'J;  Gur- 
ney  v.  Womersley,  4  El.  &  Bl.  133,  Ship's 
Case,  2  De  G.  J.  &  S.  544.  Suppose  the  ap- 
pellant had  proiluced  the  stone,  and  said 
slie  had  been  told  that  it  was  a  diamond, 
and  she  believed  it  was,  but  had  no 
knowledge  herself  as  to  its  character  or 
value,  and  Mr.  Boynton  had  given  her 
^500  for  it,  could  he  have  rescinded  tlie 
sale  if  it  had  turned  out  to  be  a  topaz  or 
liny  other  stone  of  very  small  value? 
Could  Mr.  Boynton  have  rescinded  the 
sale  on  the  ground  of  mistake?  Clearly 
not,  nor  could  he  rescind  it  on  the  ground 
that  there  had  been  a  breach  of  warranty, 
because  there  was  no  warranty,  nor  could 
lie  rescind  it  on  the  ground  of  fraud,  unless 
lie  could  show  that  she  falsely  declared 
that  she  had  been  told  it  was  a  "diamond, 
or,  if  she  had  lieen  so  told,  still  she  knew  it 
was  not  a  diamond.  See  Street  v.  Blay, 
supra. 

It  is  urged,  witli  a  good  deal  of  earnest- 
ness, on  the  part  of  the  counsel  for  the  ap- 
pellant that,  because  it  has  turned  out 
that  the  stone  was  immensely  more  valua- 
ble than  the  parties  at  the  time  of  the  sale 


supposed  it  was,  such  fact  alone  is  a 
ground  fur  the  rescission  of  the  sale,  and 
that  fact  was  evidence  of  fraud  on  the 
part  of  the  vendee.  Whether  inadequacy 
of  price  is  to  be  received  as  evidence  of 
fraud,  even  in  a  suit  in  equity  to  avoid  a 
sale,  depends  upon  the  facts  known  to 
the  parties  at  the  time  the  sale  is  made. 
When  this  sale  was  made  the  value  of  the 
thing  sold  was  open  to  the  investigation 
of  both  parties,  neither  knew  its  intrinsic 
value,  and,  so  far  as  the  evidence  in  this 
case  shows,  both  supposed  that  the  price 
paid  was  adequate.  How  can  fraud  be 
predicated  upon  such  a  sale,  even  though 
after-investigation  showed  that  the  in- 
trinsic value  of  the  thing  sold  was  hun- 
dreds of  times  greater  than  the  price  paid? 
It  certainly  shows  no  such  fraud  as  would 
authorize  the  vendor  to  rescind  the  con- 
tract and  bring  an  action  at  law  to  re- 
cover the  possession  of  the  thing  sold. 
Whether  that  fact  would  have  any  in- 
fluence in  an  action  in  eijuity  to  avoid  the 
sale  we  need  not  consider.  See  Stett- 
heimer  v.  Killip,  75  N.  Y.  287;  Etting  v. 
Bank  of  U.  S.,  II  Wlieat.  59. 

We  can  find  nothing  in  theevidence  from 
which  it  could  be  justly  inferred  that  Mr. 
Boynton,  at  the  time  he  offered  the  plain- 
tiff one  dollar  lor  the  stone,  had  any 
knowledge  of  the  real  value  of  the  stone, 
or  that  he  entertained  even  a  belief  that 
the  stone  was  a  diamond.  It  cannot, 
therefore,  be  said  that  there  was  a  sup- 
pression of  knowledge  on  the  part  of  the 
defendant  as  to  the  value  of  the  stone 
which  a  court  of  equity  might  seize  upon 
to  avoid  the  sale.  The  following  cases 
show  that,  in  the  absence  of  fraud  or  war- 
ranty, tite  value  of  the  property  sold,  as 
compared  with  the  price  paid,  is  no  ground 
for  a  rescission  of  a  sale.  Wheat  v.  Cross, 
31  Md.  99;  Lambert  v.  Heath,  15  Mees.  & 
W.  487;  Brvant  v.  Pember,  45  Vt.  487: 
Kuelkamp  v.  Hidding,  31  Wis.  .503-511. 
However  unfortunate  the  plaintiff  may 
have  been  in  selling  this  valuable  stone 
for  a  mere  nominal  sum,  she  has  failed 
entirely  to  make  out  a  case  either  of 
fraud  or  mistake  in  the  sale  such  as  will 
entitle  her  to  a  rescission  of  such  sale  so 
as  to  recover  the  property  sold  in  an  ac- 
tion at  law. 

The  judgment  of  the  circuit  court  is  af- 
firmed. 


WOOD  V.  MANLET. 


919 


WOOD  V.  MANLEY. 

(U  Adol.  &  E.  34.) 

Court  of  Queen's  Bench.     Michaelmas  Term,  1839. 

TrespasHforljreakinK  andenterine;  plaiii- 
tiff'H  clone.  Pleo,  (besideH  otherH  not  mii- 
teriiil  liere,)  an  to  entei'injj  the  cloHe,  that 
(Jerendunt,  before  the  time  when,  &e.,  was 
lawfully  poHHUHsed  of  a  hiryre  (luantity  of 
hay,  which  was  upon  plaintiff'.s  close,  in 
which,  &c.,  and  that  defendant,  at  the 
times  when,  &c.,  by  lenve  and  license  of 
tlie  plaintiff  to  liim  for  that  purpose  lirst 
given  and  K'"antcd,  peaceably  entered  the 
close,  to  carry  off  the  said  hay  and  did 
then  and  there  peaceably  take  his  said  hay 
from  and  out  of  the  said  clcjse,  as  he  law- 
fully, &c.,  which  are  the  said  alleged  trcs- 
pasKcs,  &c.     Keplication,  de  injuria. 

On  the  trial,  before  Erskine,  .J.,  at  the 
last  Somersetshire  assizes,  it  appeared 
that  the  plaintiff  was  tenant  of  a  farm,  in- 
cluding the  locus  in  quo;  and  that,  his 
landlord  havinj;  distrainerl  on  him  for 
rent,  the  goods  seized,  comprehencliiiK  the 
hay  mentioned  in  the  plea,  were  sold  on 
the  premises;  the  conditions  of  the  sale 
beinK,  that  the  purchasers  mitcht  let  the 
hay  remain  on  the  premises  till  the  I^ady- 
day  following,  (ls;i8.)  and  enter  on  the 
premises  in  tlie  meanwhile,  as  often  as 
they  pleased,  to  remove  it.  Thedefendnnt 
puichased  the  hay  at  the  sale:  and  evi- 
dence was  given  to  show  that  the  plaintiff 
was  a  party  to  these  conditions.  After 
the  sale,  on  LHUh  .January,  1>^3S,  plaintiff 
served  upon  defendant  a  written  notice 
not  to  enter  or  commit  any  trespass  on 
his,  the  plaintiff's,  premises.  In  Febrnnry 
following.  <lefendant  served  plaintiff  with 
a  written  demand  to  deliver  up  the  hay, 
or  to  suffer  him,  defendant,  to  luive  access 
thereto  and  carry  it  away;  threatening 
an  action  in  default  thereof.  The  plain- 
tiff, however,  locked  up  the  gate  leading 
to  the  locus  in  quo,  where  the  hai'  was; 
and  the  defendant,  on  Ist  Marcli,  ISJS, 
broke  the  gate  open,  entered  the  close, 
and  carried  away  the  hay.  The  learned 
judge  told  the  jury  that,  if  the  jdaintiff 
a.ssented  to  the  conditions  of  sale  at  the 
time  of  the  sale,  this  amounted  to  a  license 
to  enter  and  take  the  goods,  which  license 
was  not  revocable;  and  he  therefore:  di- 
rected them  to  find  on  this  issue  for  the 
defendant,  if  they  thought  the  plaintiff 
had  BO  assented.  Venlict  for  the  defend- 
ant. 

C'rowder  now  mov3d  for  a  new  trial,  on 
the  ground  of  misdirection.  The  learned 
jnilge  appears  to  haveconsldered  that  this 
case  fell  within  the  principle  laid  down  in 
Winter  v.  Brock  well,  S  East,  :!l)S,  that  a 
licenseexei-uted  cannot  be  revoked.  There 
the  execntion  of  the  license  took  place  by 
the  defendant  building  in  pursuance  of  the 
jilalntiff's  permission  ;  so  that  thedefend- 
nnt had  incurred  nn  expense,  upon  the 
faith  of  the  license,  in  doing  the  verj' thing 
which  was  licensed:  ami  the  action  was 
for  the  thing  so  done.  But  tills  is  not  the 
case  of  a  license  e.xecuted  before  revocn- 
tion:  the  plaintiff  rev(jked  the  permission 
before  the  defenilant  acte<I  upon  it  at  all. 
On  these  pleadings,  the  only  question  is, 
whether  tlie  act  done  liy  the  plaintiff  was 
licensed  by  the  defendant.    It  may  be  that 


the  defendant  wasentitled  to  bring  trover, 
or  perhaps  to  sue  for  breach  of  the  condi- 
tions: but  the  license  was  revoked  before 
it  was  executed.  [Lord  DE.NM  A.N,  C.J. 
If  a  man  buys  a  louf,  and  part  of  the  bar- 
gain is,  that  he  shall  leave  it  at  the 
liaker's  Rhoi>,  and  cull  for  it, can  the  baker 
prevent  liis  entering  the  shop  to  take  the 
loaf?]  .Suppose  a  party  agrees  to  sell  nier- 
cliandiNe;  if  he  afterwarrls  refuse  to  sell, 
the  buyer  cannot  take  it.  [Lord  DEN- 
.MAN,C.J.  But  here  the  sale  wa.s  com- 
pleted.] The  ruling  of  the  learned  judge, 
if  correct,  would  show  that  every  case  of 
contract  created  an  irrevocable  license. 
[Lord  OEN.MAN,  t;.  J.  Here  the  question 
is  o::  the  fact  of  the  license.]  The  revoca- 
tion of  a  license  need  not  be  specially  re- 
plied :  it  may  be  shown  under  a  traverse 
of  the  license.  Besides,  the  replication 
here  puts  the  whole  plea  in  issue;  and  the 
plea  alleges  a  quiet  entri',  which  is  nega- 
tived by  the  gate  being  broken.  A  right 
of  way  may,  perhaps,  in  some  cases  be 
enforced  by  violence,  but  not  a  license. 
[PATTESO.V,  J.,  referred  to  Tayler  v. 
Waters.  7  Taunt.  3S4,  [2  E.  (".  L.  It.  40.i.)] 
The  (piestion  there  wus,  whether  a  license 
to  use  real  [iroperty  could  be  given  with- 
out writing;  and  it  was  decided  that  it 
could.  Liggins  v.  Inge.  7  Bing.  (;S2,  (20  E. 
C.  L.  R.  304,  )i  is  to  the  same  effect. 

Lord  DE.NM  \N,  CI.  Mr.  t'rowder's  ar- 
gument goes  this  length; — that,  it  1  sell 
goods  to  a  party  who  is,  by  the  terms  of 
the  sale,  to  be  permitted  to  comeand  take 
them,  and  he  pays  me,  I  may  afterwards 
refuse  to  let  him  take  them.  i'he  law 
C4»untenance8  nothing  so  absurd  as  this: 
alicensethus  given  and  acted  upon  isirrev- 
ocable. 

PATTESON,  J.  Tavler  v.  Waters,  7 
Taunt.  :^74,  (2  E.  C.  L.  K.  405,)  shows  that 
a  license  to  use  a  seat  at  the  opera-house, 
paid  for  and  acted  upon  by  sitting  there, 
cannot  be  eounlermau'lcd.  Here  the  con- 
ditions of  sale,  to  which  the  plaintiff  is  a 
party,  are,  that  any  one  who  buys  shall 
be  at  liberty  to  enter  and  take.  .\  person 
does  buy;  part  of  his  understanding  Is 
that  he  is  to  beallowed  to  enter  and  take. 
The  license  is  therefore  so  far  executed  as 
to  be  irrevocable  etiually  with  tliat  In 
Tayler  v.  Waters.  The  case  (lut  by  Mr. 
C'rowder  is  different.  I  do  not  say  that  u 
mere  purchase  will  give  a  license:  but 
here  the  license  is  part  of  the  very  contract. 

WILLIAMS,  J.  The  plaintiff,  having 
assented  to  the  terms  of  thecontract,  puts 
himself  into  a  situation  from  which  he 
eonid  not  withilraw. 

COLERIDOE,  J.  The  pleadings  raise 
the  issue  whether,  when  the  act  com- 
plained of  was  done,  the  leave  and  license 
existed'  it  did  exist  if  It  was  irrevocable; 
and  I  tliink  it  was  irrevocable.  Althout;li 
no  one  of  the  cases  referred  to  is  exactly 
the  same  as  this,  yet  all  procecfl  on  the 
principle  that  a  man,  who,  by  consenting 
to  certain  terms,  induces  another  to  do 
nn  act,  shall  nut  afterwards  withdraw 
from  those  terms. 

Rule  refused. 


'  See  Bridues  v.  Blanchard,  1  A.  &  E.  53«,  ('JS  E. 
C.  L.  R  43.) 


INDEX. 


[the  numbers  rekkk  to  pages.] 


ACCEPTANCE. 

I.  Within  Statute  of  Frauds. 
what  constitutes— sufficiency,  19,  63,  600. 

destruction  of  tbinj;  sold,  349. 

II.  Under  the  Conteact. 
what  constitutes,  19,  61,  135,  221,  233. 

evidence  of,  427. 

— -  goods  in  possession  of  seller,  675. 
— -  question  for  jury,  567. 
as  shown  by  lapse  of  time,  567. 
sufficiency,  necessity  of  separation,  105. 

of  tender  of  acceptance,  105. 

necessity  of,  73,  557. 

by  agent  of  purchaser,  3,  403. 

within     reasonable     time,     forfeiture     of 

right,  419. 
rejection,  effect  of  delay,  245. 
right  to  inspect  goods,  245. 

selection  by  seller,  691. 

as  affected  by  retention  of  vendor's  lien, 
507. 

of  portion  of  goods  bought,  effect  as  waiv- 
er of  right  to  rescind,  595. 

refusal  of  buyer  to  accept,  25,  47,  87,  ItU. 
487,  557,  691,  727.  837. 

delivery  to  carrier,  387. 

ACTIO.X. 

see  "Ueplevin;"  "Trover  and  Conversion." 
action  for  price,  see  "Remedies." 
action  for  damages,  see  "Kemedles." 

AGENT, 

see  "Principal  and  .\gent." 

AGKEEMRNT, 

see  "Memorandum." 

APPROPUIATION  OF  GOODS, 
by  vendor,  transfer  of  title,  473. 

delivery  to  carrier,  635. 

ASSENT, 

of  purchaser,   mistake  as  to  goods  sold, 

731. 
mistake  as  to  quality  of  goods  sold,  733. 

as  to  terms,  673. 

nmtual  assent,  fraud  of  buyer,  391. 

ASSIGNEE, 

in  insolvency,  title  from  fraudulent  as- 
signor, 249. 


AUCTIONEER, 

authority  to  sign  memorandum,  549. 


AVOIDANCE  OF  CONTRACT, 

see  "Fraud;"    "Mistake;"    "Rescission." 


BAILMENT, 

distinction  between  bailment  and  sale, 
533,  5.35. 

confusion  of  goods,  wheat  stored  in  ware- 
house, detlciency,  proportion  of  loss,  93. 

BANKRUPTCY, 

trover  against  assignee  of  bankrupt,  289. 

BARTER, 

or  sale,  what  constitutes,  553. 

BILL  OF  LADIN(;, 

as  transfer  of  title,  317. 

assignment   after   notice   of   stoppage   Ip 

transitu,  577. 
effect  of  transfer,  43. 
liabilities  of  a.ssignee  to  carrier,  713. 

BON.\  FIDE  PURCHASERS, 

who  are.  mortgagees  in  pos-scssicm,  497. 

creditors    of    fraudulent    purchaser, 

743. 

assignee  in  Insolvency,  299. 

rights  of.  27,  29,  33.  43. 

pawnbroker     making     advances     to 

fraudulent  pun-haser,  617. 

purchase  from  fraudulent  buyer,  237 

275,  065. 

vendee  of  one  purchasing  on  Sunday 

435. 

from  buyer  of  goods  sold  conditiomilly 
541. 

having    conditional     posses.sion,    751 

757. 

from  one  olitaining  posses.sion  by  fraudu 

lent  rcpre.seiilationi*  as  to  identity.  657, 
purclia.se  from  trespa.sser.  liability  to  true 

owner.  ".Mil. 
of  stiiU'U  goods,   liability    to  true  owner, 

7.">'.».  821.  871. 
rights  as  affectiHl  by  vendor's  lien,  613. 
sale  by  carriers,  title  acquired.  677. 
title  ac<iuired  by  void  sale  by  prize  court, 

861. 

BREACH  OF  CONTRACT, 
see  "Remedies." 


LAW  SALES. 


(921) 


922 


INDEX. 
[The  numbers  refer  to  pages.] 


CARRIERS, 

as  agents  to  receive  goods,  1. 
delivoi-y  to,  77,  463. 

transfer  of  title,  423,  GG9,   7G7,  781, 

859. 

liability  for  conversion,  delivery  after  no- 
tice of  stoppage  in  transitu,  481. 

remwlies  against  assignee  of  bill  of  lading 
for  freiglit,  713. 

unauthorized  sale  by  caiTier,  rights  of 
bona  fide  purchasere,  677. 

CAVEAT  EMPTOR, 
nile  as  to,  139. 
duty  of  buyer  to  inspect,  559. 
implied  warranty,  reliance  on  brand,  911. 
taking  rislt  as  to  quality,  605. 

CHATTEL  JIORTGAGES, 

sale  by  mortgagor,  rights  of  mortgagee, 
763. 

0.  O.  D., 

delivery  completed,  175. 

by  carrier  without  payment,  liability, 

771. 

CONDITIONAL  SALE, 

effect  of  performance,  61,  395. 

payment,  by  installments,  transfer  of 
title,  151,  20.3,  541. 

prepayment  of  price,  37,  71,  169,  293. 

property  destroyed  in  possession  of  buy- 
er, liability  for  price,  823. 

reservation  of  title,  validity  as  to  third 
pei-sons,  541,  757. 

sale  or  retm-n,  545. 

sales  C.  O.  D.,  when  dehvery  completed, 
173. 

title  in  property,  133. 

CONDITIONS, 

see,  also,  "Conditional  Sales." 

duty  of  buyer  to  inspect,  271. 

successive  payments,  transfer  of  title,  341. 

stipulations  as  to  time,  539. 

time  the  essence  of  the  contract,  failure 

of  seller  to  perform,  487. 
sale   of   specific   chattels,    weighing    imd 

measuring,  173,  217. 
goods  "to  arrive,"  transfer  of  title,  147 

739. 

to  be  satisfactory,  129. 

impossibility  of  performance,  destruction 

by  fire,  241. 

CONFUSION  OF  GOODS, 
see  "Bailment." 

CONSIDERATION, 

faUure  of,  remedies  of  buyer,  353,  359. 

CONTRACTS, 

see,  also,  "Frauds,  Statute  of;"    "Reme- 
dies;"   "Sunday;"   "Warranty." 
agent's  authority  to  sign,  125,  159. 


CONTRACTS— Continued. 

at  price  to  be  afterwards  determined,  531. 
consent  of  owner  necessary,  imauthorized 

sale  by  can-ier,  677. 
executoi-y  contiucts,  transfer  of  title,  845. 

delivery   of  goods  shipped  C.   O.  D. 

to  carrier,  771. 

intent  of  purchaser,  mistake  as  to  goods 
sold,  731. 

mistake,  effect  of  on  contract,  see  "Mis- 
take." 

mutual  assent,  fraud  of  buyer,  391. 

transfer  of  title,  263.  * 

of  sale,  or  work  and  labor,  187,  509. 
place  of  performance,  355. 

to  sell  in  future,  133. 

where  time  is  of  the  essence,  487. 

CONVERSION, 

see  "Trover  and  Conversion." 


DAMAGES, 

for  breach  of  contract  of  buyer,  47,  903. 

warranty,  561. 

in  action  against  buyer,  refusal  to  accept 
before  completion,  327,  437. 

refusal  of  buyer  to  accept  upon  com- 
pletion, 25. 

DECEIT, 

see  "Fraud." 

DELIVERY, 

of  gifts,  see  "Gifts." 

actual  and  constnictive,  47,  59. 

what  constitutes,  7,  63,  99,  233,  341,  573. 

appropriation  by  vendor,  457. 

destruction  of  thing  sold,  349. 

machinei"y  in  condition  unfit  for  use, 

841. 

weighing    and    measuring,   303,   799, 

845,  891. 

simultaneous  with  payment,  tight  of  seller 
to  rescind  on  failure  to  pay,  619. 

demand  and  tender  by  buyer,  879. 

as  afCectiug  statute  of  frauds,  19. 

at  specified  place,  335. 

of  vessel  sold,  what  constitutes,  513. 

suflieiency  to  pass  title,  77,  207,  503. 

as   against   a-editors   of  seller,   407, 

453. 

to  agent,  3. 

of  buyer,   weighing  and  measuring, 

697. 

at  intermediate  point,  right  of  stop- 
page in  transitu,  43. 

to  carrier,  77,  423,  463,  635,  767,  781,  859. 

refusal  of  buyer  to  accept,  387. 

of  goods  shipped  C.  O.  D.,  771. 

of  order  on   warehouseman,    transfer  of 

title,  22.5,  581. 
of  portion  of  a  mass,  419. 
of  part  of  goods  sold,  recovery  of  price^ 

587. 

right  of  rescission  of  buyer,  595. 


INDEX. 


923 


[The  numbers  refer  to  pages.] 


DELIVERY— Continued. 

on  sale  on  credit,  transfer  of  title,  efToct 
of  delivoi-y,  819. 

order  to  buyer  to  take  goods  sold,  revoca- 
tion, 919. 

reservation  of  jus  disponendi,  99. 

rights  of  buyer  to  enter  and  take  away, 
337. 

when  buyer  entitled  to,  73. 

when  necessary  to  transfer  title,  47. 

when  to  be  made,  forfeiture  by  delay,  197. 

with  otlier  articles  by  restaui'ant  proprie- 
tor, 181. 

without  transfer  of  title,  71,  77. 

effect  on  vendor's  lien,  7,  307,  523. 

holding  to  buyer's  order,  790. 

necessity,  91,  3.">0. 

on  conditions,  rights  of  bona  fide  r)i>r 
chasers,  1G9,  751,  759. 

by  agent  against  instructions  of  principal, 
777. 

by  carrier  through  mistake,  transfer  of 
title,  G09. 

by  transfer  note,  411. 

DONATIO  CAUSA  MOUTIS, 
see  "Gifts." 

E. 

EARNEST  JIONEY, 

effect  of  payment.  879. 

time  of  payment,  effect  on  statute  of 
frauds,  4G7. 

what  constitutes,  deposit  with  third  per- 
son, 441. 

EXCEIANGE, 

or  sale,  remedies  (or  breach  of  contract, 
553. 

EXECUTORY  CONTRACTS, 

see  "Contracts." 

EXPRESS  WARRANTY, 
see  "WaiTauty." 


FACTORS  AND  BROKKUS. 
see  "Principal  and  Agent." 
power  of  sale,  reservation  of  the  jus  dis- 
ponendi, 255. 

FALSE  REPRESENTATIONS, 
see  "Fraud;"    "Remedies." 

FIRE, 

loss  of  goods  sold   by   fire— liabilities  of 
parUes,  S09,  813. 

FORFEITURE, 

of  contract  by  delay  in  acceptance.  197. 

FRAUD, 

see  "Frauds,  Statute  of;"    "lU'iuedies." 


FRAUD— Continued. 

as  to  creditors,  continued  possession  by 

seller,  91,  037,  831. 
Of  seller,  misrepresentations  as  to  value, 

287. 
on  buyer,  ground  for  rescission,  515. 
on  the  seller,  27,  29,  33,  211,  233,  237,  249, 

275,  299. 
sale  by  fraudulent  purchaser,  27,  29,  33. 

FRAUDS,  STATUTE  OF, 

acceptance  and  receipt,  19,  03,  349,  C09. 
delivery  of  part  of  the  goo<ls,  807. 

to  agent.  3. 

earnest  money,  time  of  payment,  4C7. 
memorandum,  sufficiency,  207,  509. 

agents  authorized   to  sign,   120,   159, 

817,  893. 

signing  by  auctioneer,  .'>49. 

brokers'  bought  and  sold  notes,  125, 

159. 

names  of  parties,  125,  159,  207,  4C9, 

085. 

neco.ssary  contents,  125. 

different  papers,  105,  001. 

time  of  Minking,  (m. 

description  of  contract,  08.5. 

oral   contract    to   rescind,    consideration, 

477. 
of  sale  exceeiling  limit,  3. 
sale  of  promissory  notes,  23. 
tender  of  part  payment,  effect.  279. 
what  are  goods,  wares  and  merchandise, 

23. 

shares  in  joint  stock  company,  443. 

what  contracts  within  statute,  agreement 

to  raise  potatoes.  G41. 

purchase  of  growing  trees,  879. 

sale  or  manufacture,  187. 

sale  of  promissory  note,  23. 


GIFTS, 

inter  vivos,  consideration,  5.". 

delivery,  55,  591,  747,  7.V>. 

and  possession,  rights  of  donor's  cred- 
itors, (!01. 

necessity,  ret.aining  control,  027. 

when  doniH?  in  possession,  '.K)7. 

rights  of  donee  after  possession  ac- 

Q\iired,  370. 

evidi'uce  of  intent,  79. 

in   payment   of  debt,   taking  possession, 

s:ii." 
donatio  causa  mortis,  delivery,  117,  383, 

415. 

change  of  possession,  SS7. 

knowltvlge  of  donee,  005. 

to  third  person  for  donee,  855. 

GOODS,  WARES  AND  MERCHANDISE, 
what  are,  23,  187,  (!41. 

growing  trvi>s,  ;j;{7,  870. 

shares  in  joint  stoi-k  company,  443. 


924 


INDEX. 

[The  numbers  refer  to  pages.] 


I. 


IDENTITY, 

fraudulent  representations  as  to  identity, 
63. 

ILLEGALITY, 

of  contract,  ratification,  501. 
sale  on  Sunday,  43.j,  905. 

IMPLIED  WARRANTIES, 
see  "Warranties." 

INSOLVEXOY, 

as  groun<l  for  rescission,  see,  also,  "Reme- 
dies;" "Rescission;"  "Stoppage  in  Trans- 
itu." 

of  buyer,  stoppage  in  transitu,  rights  of 
messenger  in  insolvency,  825. 

INSPECTION, 

riglit  of  buyer  to  inspect  before  accept- 
ance, 139,  245,  559,  G05,  691,  911. 

INSTALLMENTS, 

payments  by,  transfer  of  title,  151,  203, 
541. 


JUDICIAL  SALES, 

riglits  of  purchaser  under  void  order,  861. 


LADING, 

see  "Bill  of  Lading." 

LICENSE, 

to  enter  seller's  premises  and  cut  trees 
sold,  revocation,  337. 

LIEN, 

see,  also,  "Vendor's  Lien." 
warehouse  receipts,  229. 

M. 

MARKET  OVERT, 

not  recognized  in  United  States,  821,  861. 

MEMORANDUM, 

under    statute    of    frauds,   see   "Frauds, 
Statute  of." 

MERCHANTABILITY, 

warranty  of.  111,  289,  345,  483,  559,  745 
911. 

MISREPRESENTATIONS, 
see  "Fraud;"   "Remedies." 

MISTAKE, 

as  to  terms  of  contract,  effect,  673. 

as  to  goods  bought,  731. 

as  to  quaUty  of  goods  sold,  right  of  seUer 

to  rescind,  733. 
In  deliveiy  of  articles,   transfer  of  titie, 

333. 


MISTAKE— Continued. 

right  of  buyer  to  rescind,  185. 

sale    of    furniture,     valuables    concealed 

therein,  445. 
property  not  existing  in  seller,  403. 

MORTGAGES, 

rights  of  mortgagees  of  buyer  in  posses- 
sion, stoppage  in  transitu,  497. 

MUTUAL  ASSENT, 
see  "Assent." 

N. 

NON-ACCEPTANCE, 

see.  also,  "Remedies." 
refusal  of  buyer  to  accept,  87,  3S7,  727, 
837. 

P. 

PARTIES, 

see,  also,  "Bona  Fide  Purchasers;"  "Prin- 
cipal and  Agent." 
remedies  of  parties,  see  "Remedies." 

PAYMENT, 

and  simultaneous  delivery,  demand  and 
tender  by  buyer,  879. 

right  of  seller  to  rescind,  619. 

before  delivery,  when  necessary,  613. 
by  inst;illments,  when  title  passes,  151. 

203. 
during  progress  of  work,  transfer  of 

title,  897. 
In  specific  goods,   readiness   to   perform, 

425. 
ol  earnest  money,  467. 

deposit  with  third  person.  441. 

PERFORMANCE, 

see,  also,  "Deliveiy." 
impossil)ilitj-  of  performance,  241. 
partial  delivery  of  goods  sold,  587. 

PLEDGE, 

rights  of  pawnbroker  making  adrauces 
to  fraudulent  purchaser,  617. 

liability  of  agent  of  frauduleat  mort- 
gagor to  pledgee,  763. 

POSSESSION, 

retained  by  seller,  loss  by  fire,  liability 
of  purchaser,  675. 

continued  possession,  fraud  as  to  cred- 
itors, ni. 

pr(>sumptions,    as    to    fraud    against 

creditors,  637,  831. 

PRICE, 

see,  also,  "Payment." 

as  affecting  statute  of  frauds,  3. 

market  value,  what  is,  503. 

reasonable  price,  what  is,  503. 

to  be  afterwards  determined,  531. 

prepayment  on  conditional  sale,  37. 

when  necessary,  71. 


IXDEX. 


925 


[The  iiiiinlxTs  refer  to  piiiros.] 


PUINCIPAL  AND  AGENT, 

acci'ptMiicc  liy  iiKi'iit,   'S. 

uuUiority  of  iigciit  to  sign  iiioraoraiKluiu, 
125,  ir.O,  817,  893. 

agent  of  thief,  liability  to  truo  owdit, 
75!>,  799. 

agent  of  fraudulent  mortgagors  of  chat- 
tels, lial)ility  to  pledgee,  703. 

PROMISSORY  NOTE, 

when  sale  of,  within  statute  of  frauds,  23. 

PROPERTY  IN  GOODS. 

see  "T'itle  to  Property;"  "Weighing  and 
Measuring." 

PITRCHASER, 

eee  "Bona  Fide  Purchasers." 


R. 

RECEIPT, 

see,  also,  "Acceptance." 

what  is  a  receipt,  19,  59,  135. 

for  portion  of  designated  mass,  transfer 

of  title,  491. 
of  carrier,  transfer  of  title,  313. 

REMEDIES, 

I.  Of  Seller. 

a.  Afiainut  the  Buyer. 

b.  Againut  tlic  Goods. 

II.  Ov    BlIYEIi. 

I.  Of  Seller. 
a.  Against  t?ie  Buyer, 
see,  also,  "Rescission." 
action    for    price,    destruction    of    thing 
sold,  349. 

goods  destroyed  after  setting  apart 

for  buyer.  SC,7. 

loss  of  goods  by  fire,  809,  813. 

J —  property  destroyed  in  hands  of  buy- 
er, 82.-!. 

impli("d  warranty  of  titncss,  700. 

transfer  of  title  necessary,  327. 

on   delivery   of   pai't   of  goods   sold, 

587. 

on  refusiil  of  buyer  to  accept,  25,  47, 

4S7,  5."«7,  837. 

on  non  acceptance  before  comple- 
tion, 121,  327,  4:^7. 

on  refusal  to  accept  after  comple- 
tion, 25.  4S7,  727. 

refusal  of  buyer  to  accept,  action  for 
dam.ages,  25,  87.  091,  .'-.37. 

insolvency  of  buyer,  <leli%'ery  of  goods 
to  third  party  in  trust  lor  sellers,  793 

against  pUxlgee  of  fraudulent  pm-chaser, 
017. 

trover  against  a.ssigne«»  of  bankrupt  buy- 
er, 289. 

delivery  by  agent  against  instructions, 
a<'tion  for  conversion.  777. 

fraud  of  buyer,  action  of  trover,  391. 


REMEDIES— O.ntinned. 

resei.ssion  by  buyer,  action  for  damages, 

9(J3. 
death  of  buyer,  contr.act  of  sale,  or  work 
and  labor,  009. 

b.  Againut  the  Ooods. 

see,  also,  "Stoppage  In  Transitu." 

lien   on  goods,  see  "Vendor's  Lien." 

rcs.ile,  27,  73,  271,  .539. 

fraudulent  repri'sentations  of  buyer  as  to 
identity,  recovery  of  goods,  031. 

sale  on  credit,  delivery  to  purchaser,  re- 
plevin of  goods,  819. 

replevin  against  creditors  of  fraudulent 
buyer,  109. 

II.  Ok  Buyer. 

see,  also,  "Iteselssion." 
on  faihire  to  deliver,  241. 
on  failure  to  deliver  all   goods  sold,  re- 
scission, 595. 

forfeiture  of  right  by  delay,  419. 

on  refusal  of  seller  to  deliver,  879. 
on  failure  to  deliver  in  time,  841. 

damages,  rejisonable  price,  503. 

on  deliciency  in  quantity,  3-3. 

for   books   stolen    from   owner,   necessity 

of  prosecuting  tliief,  871. 
on  failure  of  consideration,  3.53.  3.59. 
on  false  repre.seulatinns  of  vend(  e,  action 

for  damages,  2S7,  005. 
on    purcliase    of    property    supposed    to 

exist,  403. 
on  return  of  property,  defective  qu.ality, 

047. 
on  replevin  of  portion  of  mass,  70.5. 
on  brejich  of  warr.inty.  199,  251.  293,  849. 
as  to  (luality,  289,  303,  8.S;!. 

of  title,  28.3. 

- —  return  of  goods,  307. 

action   of  as.sumpsit,   785. 

on  liri'Mch  of  ^niplie»l  warranty,  37. 
reasonable    lituess,    damages    caused    by 
defect,   051. 

REPLEVIN, 

see,  also,  "Remedies." 

on   fraudulent   representations   of  bu.ver, 

031. 
against    creclltors    of    fraudulent    buyer. 

031. 
on  failure  to  pay  price,  631. 
by  buyer  of  portion  of  mass  sold,  705. 

RESALE, 

right  of  seller  to  res<'ll,  see  "Remi^dies." 
by    Insolvent    buyer,    effect    on    right    of 
stoppage  in  transitu,  11,  519,  005. 

RESCISSION, 

I.   By  Sei.ler- 
for  fraud  on  seller,  29,  33,  211.  237,  249, 
275,  2<.»9. 

fraudulent   representations  of   buj-er 

1  as   to   identity,   3l»l. 


926 


INDEX. 


[The  numbers  refer  to  pages.] 


RESCISSION— Continued. 

ot  Uleg.nl  contr.ict,  rights  of  .seller,  905. 
of  contract  m.ide  on  Sunday,  005. 
on  sale  to  bona  fide  ptircha.ser,  6(!5,  743. 
by  creditors  of  seller  for  fraud,  831. 
for  failure  to  pay  price,  293,  539. 

on  delivery,  619. 

for  insolvency  of  buyer,  51,  449,  519,  707, 

789,  793,  803. 
for  inadequacy  of  price,  915. 
for  mistake  as  to  value,  915. 

as  to  quality  of  goods,  733. 

II.  By  Bdter. 
for  failure  to  deliver  all  goods  sold,  595. 

to  deliver  in  time,  811. 

for  false  representations  of  seller,  5C1. 

for  fraud,  515. 

for  mistake,  185. 

defective  quality,  8.39. 

return  of  property  purchased,  023. 

RETURN, 

of  goods  sold,  see  "Rescission." 
by  buyer,  defective  quality,  647. 
for  breach  of  warranty,  023. 

REVOCATION, 

see,    also,    "Rescission;"    "Stoppage    in 

Transitu." 
by  seller,  of  order  for  delivery  to  buyer 

of  goods  sold,  919. 


SAMPLE, 

sales  by,  warranty,  77,  83,  389. 

SELLER. 

remedies  of,  see  "Remedies." 

SHARES, 

of  stock  of  corporation,  not  goods,  wares 
and  merchandise,  443. 

SHEEP, 

right  of  buyer  to  wool,  375. 

SIGNATURE, 

of  parties  to  memorandum,  409,  685. 
of  agent  to  memorandum,  125,  159,  893. 

STATUTE  OF  FRAUDS, 
see  "Frauds,  Statute  of." 

STOLEN  GOODS, 

liability  of  purcliaser  to  true  owner,  821. 

of  agent  to  true  owner,  7.59,  799. 

title  of  pm-chaser  from  thief,  871. 

STOPPAGE  IN  TRANSITU, 
nature  of  right,  519. 
against  whom  e.xercised,  51. 
Insolvency  of  buyer,  51,  449,  519,  767.  789. 

rights   of    messenger   in    insolvency 

825. 

after  delivery  on  buyer's  vessel,  789,  793. 


STOPPAGE  IN  TRANSITU— Continued, 
after  delivery  to  mortgagees  of  buyer  In 

possession,  497. 
- — ■  and  sale  to  bona  fide  purcliaser,  11, 

519,  665. 
to  agent  at  intermediate  points,  43. 

of  transfer  note,  411. 

notice  to  carrier,  481. 

exercise  of  right,   assignment  of  bill   of 

lading  after  notice,  577. 
effect,  restoration  of  vendor's  lien,  665. 

SUNDAY, 

contract  made  on  Simday,  inability  of 
seller  to  rescind,  905. 

Ulegalitj'  of  contract,  ratification,  501. 

sale  on  Sunday,  rights  of  bona  fide  pur- 
chaser, 435. 

T. 

TENDER, 

of  goods,  see  "Acceptance;"  "Delivery." 
by  seller,  of  portion  of  mass  of  equal 

quality,  491. 
sufficiency  to  compel  acceptance,  105. 
of  specific  goods,  sufficiency,  105,  147. 
of  performance  by  seller,  355. 

on  rescission  by  buyer  unnecessary, 

903. 

of  price,  efCect  on  vendor's  lien,  539. 

TITLE  TO  PROPERTY, 
implied  warranty  of,  701. 
what  constitutes  transfer,  15,  25,  309. 

sale  of  specific  articles,  539. 

. .iroods   "to  arrive,"  739. 

sale  0.  O.  D.,  175. 

goods  shipped  C.  O.  D.  and  delivered 

to  carrier,   771. 

intent,  545. 

sale  of  fm'uiture,  valuables  con- 
cealed therein,  445. 

mistake  in  articles  delivered,  333. 

mistake  as  to  goods  bought,  731. 

goods  set  apart  and  subject  to  pur- 
chaser's order,  867. 

appropriation  by  vendor,  473. 

delivery   to  insolvent  buyer,   depo^iit 

with  third  persons  In  trust  for  seller, 
703. 

before  completion  of  work  on  prop- 
erty purchased.  897. 

sale  on  credit,  819. 

sale  on  conditions,  395. 

reservation  on  conditional  sale,  133, 

541,  757. 

prepayment  of  price,  541. 

• payment  by  installments,  151,  203. 

determination  of  price,  527,  531. 

fraudulent  representations  of  agent, 

657. 

fraudulent     representations     as     to 

identity.  631. 

when  delivery  does  not  transfer,  7L 

necessary  to  transfer,  47. 


INDEX. 


927 


[The  niiiubcrs  rpfer  to  pages.] 


TITLE  TO  PKOPERTY— Continued, 
when  passe.s  by  delivery,  207. 
delivery  to  e;uTier.s,  423,  7(J7,  781,  859. 

by  carrier  through  mistake,  GG9. 

assi^^nment  of  carrier's  receipt,  313. 
shipment  on  buyer's  vessel,  789. 
delivei'y  of  order  on  warehouseman,  581, 

797 
eflfect  of  bill  of  lading,  317. 
sale  of  specific  chattels,  portion  of  mass, 

323. 
property  part  of  mass,  necessity  of  sepa- 
ration, 491,  705,  875. 
sale  of  gfX)ds  not  specific,  weighing  and 

meiisuring,  173,  303,  491,  527,  587,  G89. 

097,  S45,  891. 

of  goods,  destruction  by  fire,  809,  813. 

ac(iuireU    by    l)oiia    fide    purchaser    from 

sciler  without  title,  001. 
of  ius.signee  of  fraudulent  buyer,  249. 
of  purchaser  from  fraudulent  buyer,  27, 

29,  33. 
of  iKina  fide  purchaser  of  stolen  goods, 

821,  871. 
effect  of  judgment  in  trover,  203. 

TRANSFER  OF  TITLE, 
see  "Title  to  Property." 

TROVER  AND   CONVERSION, 
see,  also,  "Remeflies." 
liability  of  carrier,  delivery  after  notice 

of  stoppage  in  transitu,  289. 
against  assignee  of  banlcrupt  buyer,  289. 
delivery   by    agent   against   instructions, 

777. 
on  fraud  of  buyer,  391. 
against  bona  fide  purchaser  of  one  having 

couditioual  possession,  757. 


VENDOR'S  LIEN, 

what  constitutes,  7. 
when   reco};nized,   143. 
delivery,  effect  on  lien,  7,  221,  3C7. 
of  part,  rights  of  bona  fide  purchas- 
er, 013. 
how  lost,  tender  of  payment,  530. 


VENDOR'S  LIE.N-Conlinucd. 

how     lost,    surrender    of    possession     to 

vendee,  523. 
Insolvency  of  buyer,  goods  In  possession 

of  seller,  827. 
waiver,  7,  523. 
goods  held  by  seller  for  lien,  destruction 

by  fire,  liability  of  piu-chaser,  075. 

w. 

WAIVER. 

of  breach  of  warranty.  293. 
of  vendor's  lien,  delivery,  523. 

sale  on  credit,   7. 

WARRANTY, 

written  and  oral  warranties,  83. 
express  warranty,  wliat  constitutes,  141. 

evidence   of.    371. 

agiiinst  defects,  knowledge  of  buyer, 

849. 

as  to  condition  of  goods  sold,  371. 

of  quality,  251.  333. 

rea.souable   adulleralion,   883. 

Implied   warranty  of  title,  283,  3.';9,  605. 

ij2:{. 

after-acquired  title,  701. 

knowledge  of  intended  use,  implied 

warranty  of  fitness,  709. 

of  soundness,  559. 

of  merchantability.  483. 

reliance  on  inspector's  brand,  911. 

sales  by  sample.  77,  83,  389. 

sale  for  sound  price,  caveat  emptor, 

111. 

sale    of    provisions,    soundness,    289, 

34.J,  745,  911. 

sales  by  description,  303,  911. 

by  manufacturer  of  fitness,  199,  051. 

remedies  of  buyer,  assumpsit  for  breach, 

785. 
breach  as  a  defense,  return  of  goods,  307. 

WEIGHING  AND  MEASURINO. 

when  ncx-essary  to  tninsfer  of  title.  303, 

491,  ."127.  TiSl.  i'kS!!.  797.  S4:,.  Si)!. 
delivery  to  Imyer's  agent,  effect,  007. 
sale  of  chattels  not  specific,  selection  by 
vendor,    1 73. 


WX8T   PUBLUBI.HO  CO..  PRIXTKU  tUB  •TEKEOTTPIB",  tT.  PIDL.  UlilX. 


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